Jeanette Kirkpatrick v. The Canadian Union of Public Employees, Local 1329, 1984 CanLII 921

Jeanette Kirkpatrick v. The Canadian Union of Public Employees, Local 1329, et al.

[1984] OLRB Rep. April 640

2444-83-U Jeanette Kirkpatrick, Complainant, v. The Canadian Union of Public Employees, Local 1329, Canadian Union of Public Employees, Grace Hartman, Gordon J. Allan, Paul Gilbert, and John Vlahovic, Respondents, v. The Corporation of the Town of Oakville, Employer.

BEFORE: Owen V. Gray, Vice-Chairman.

APPEARANCES: Crawford N McNair and Jeanette Kirkpatrick for the complainant, Naomi Duguid for the respondents Local 1329, Paul Gilbert and John Vlahovic; S. R. Hennessy for the respondents CUPE (the National), Jeff Rose and Gordon J. Allan; D. K. Laidlaw, Q. C., E.Stewart, Arthur Bishop and Lois Payne for the employer.

DECISION OF THE BOARD; April 13, 1984

1. This complaint filed under section 89 of the Labour Relations Act alleges violation by the respondents of section 68 of that Act. The complaint came on for hearing April 9, 1984, at which time I delivered an oral ruling with respect to certain preliminary issues. The text of that ruling is set out here together, where necessary, with supplementary reasons.

2. The factual background was set out in my oral ruling:

In this complaint, Jeanette Kirkpatrick alleges she has been dealt with by the respondent Local and National unions, and various of their officials and members, contrary to section 68 of the Act. The complainant says the trade union respondents acted in a manner which was arbitrary, discriminatory or in bad faith in their handling of her grievance of what for these purposes may be described as the termination of her employment by her employer, The Corporation of the Town of Oakville ("the Town"). That grievance, she says, should have been but was not processed through to arbitration. Instead, the Town was told the grievance would not be pursued. The complainant now asks for remedies which include an order that she be reinstated in her employment. Because of the nature of the remedies sought, she has named the Town as a person who may be affected.

The "termination" complained of occurred in May, 1983. The decision not to proceed with the grievance was communicated to the Town in July, 1983. The complaint was filed in late January, 1984 and served on the Town in early February. The Town filed a reply April 5, 1984. Paragraphs 9 and 10 of that Reply read as follows:

9. On June 17, 1983, the Town Administrator denied the Complainant's grievance.

10. The Complainant took no further steps to request that the grievance proceed further to arbitration in accordance with the Collective Agreement, and the time limits prescribed for so doing have expired. At no time prior to the bringing of this Complaint has the complainant or any person acting on her behalf requested the Town of Oakville to extend the time limits for arbitration as prescribed by the Collective Agreement.

In the meantime, the complainant and the trade union respondents have made a peace, by which the Local trade union agrees to take Mrs. Kirkpatrick's grievance to arbitration. The Town has now been asked to extend the time limits referred to in its reply. The Town has refused that request.

The trade union respondents admit that the respondent Local has breached section 68 and ask that the Board make orders:

(a) requiring the Local to proceed to arbitration with Mrs. Kirkpatrick's grievance;

(b) waiving the procedural and timeliness requirements of the collective agreement in order to enable the grievance to proceed to arbitration on the merits; and

(c) ordering the Local to pay, in the event the arbitrator awards back-pay and benefits, the amount which is attributable to the failure to proceed to arbitration.

The complainant and the trade union respondents say that their agreement to these orders is a sufficient basis for granting them. The Town takes the position that:

(1) the Board should not send the complainant's grievance off to an arbitration in which the Town will be required to participate, without being satisfied that arbitration is appropriate having regard to all the circumstances, including the low probability that an arbitrator would exercise any jurisdiction he or she has to extend collective agreement time limits; and

(2) that in any event the Board has no jurisdiction to direct the Town (or, presumably, any party to a collective agreement) to waive time limits specified by a collective agreement.

This Board has for many years interpreted section 89 of the Labour Relations Act, and the predecessors of that section, as affording it the jurisdiction to remedy a violation of section 68 by directing that a grievance be taken to arbitration and that procedural impediments in the applicable collective agreement, such as time limits, be waived by the parties — including the employer; it was and is for this reason that employers are regarded as proper parties to a section 68 complaint: in this regard see Gebbie and Longmore, [1973] OLRB Rep. Oct. 519; Imperial Tobacco Products, [1974] OLRB Rep. July 418, reconsideration denied at [1974] OLRB Rep. Sept. 609; Leonard Murphy, [1977] OLRB Rep. Mar. 146; Massey Ferguson Limited, [1977] OLRB Rep. Apr. 216; Reginald Walker, [1980] OLRB Rep. Oct. 1651; Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338; North York General Hospital, [1982] OLRB Rep. Aug. 1190; and, Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067. Counsel for the Town concedes that the Board would derive such jurisdiction from the words "notwithstanding the provisions of any collective agreement" in section 89(4), were it not for the provisions of section 44(6) which, counsel argues, delegates any question of time limits exclusively to an arbitrator.

3. The effect on an employer of an employee's complaint that his bargaining agent has violated section 68 [then section 60] of the Labour Relations Act, was first addressed in the Gebbie and Longmore decision, supra, in which the Board had this to say:

4. In view of the disposition of this case it is not necessary for us to finally decide the issue. However, because of the preliminary argument and discussion that ensued during the course of the proceedings, we feel that some comments are necessary. We recognize that section 60 imposes no statutory duty on an employer, but, we also recognize as we indicated in our interim decision that section 79(4)(c) gives this Board broad remedial powers including the vacating of the provisions of a collective agreement. If the Board is to utilize the remedy of remitting matters to arbitration it will undoubtedly be faced with the criticism that an employer whose rights may be affected is not a party to the proceedings; this is particularly so should the Board require time limits in a collective agreement to yield which may be permissible under section 79(4)(c). In order to avoid a denial of natural justice in these circumstances an employer should be a party to the proceedings and the Board's Rules of Procedure, i.e., Rules 28 and 54, may be used to give an employer notice and the opportunity to appear in those proceedings where his rights may be affected.

5. The real issue is whether the enforcement provisions of the Act contained in section 79(4)(c) should be made to run against an employer in the absence of any statutory violation by that employer. We recognize that in many situations appropriate relief cannot be afforded to an employee unless the relief can run to an employer. Section 79(4)(c) if read literally suggests that there may be relief against both the union and the employer where there is a breach of section 60.

6. Counsel for Ford took the position that the reference to section 60 was inserted in section 79(4)(c) in order to enable the Board to grant a remedy against a union for breach of section 60, but it did not contemplate that a remedy would also be awarded against an employer. That is the issue that remains to be decided. We point out that in Vaca v. Sipes the Court had the opportunity to discuss the relationship of an employer to the situation where the union had violated its statutory duty. In Vaca v. Sipes the Court stated at p. 18,302:

"Though the union has violated a statutory duty in failing to press the grievance, it is the employer's unrelated breach of contract which triggered the controversy and which caused this portion of the employee's damages. The employee should have no difficulty recovering these damages from the employer, who cannot, as we have explained, hide behind the union's wrongful failure to act; in fact, the employer may be (and probably should be) joined as a defendant in the fair representation suit,..."

(italics added)

The conclusion in Vaca v. Sipes was that the remedy should run to the employer notwithstanding that it was the union that had violated its statutory duty.

52. Since we did not call on the respondent employer and the respondent union for final argument in this case, we do not think it appropriate to finally decide the issues raised. We do wish, however, to record the raising of the argument and our concern with respect to the operation of section 60 and section 79(4)(c), and to leave the matter in abeyance for argument and final decision at another time.

The passage just quoted was reviewed by the Board in Imperial Tobacco Products, supra, and summarized in the following terms:

In other words, the references to section 60 in section 79 have to be viewed in relation to the legislation history of section 60. A trade union's duty of fair representation originated with the courts of the United States (see Steele v. Louisville & Nashville Railroad Co. et al (1944) 323 U.S. 192; Ford Motor v. Huffinan et al (1953) 345 U.S. 330; Humphrey et al v.Moore et al (1964) 375 U.S. 335; Vaca et al v. Sipes, Administrator (1967) 386 U.S. 171) and only later was the duty adopted by the National Labour Relations Board by way of adjudication (Miranda Fuel Co. NLRB 1962, 51 LRRM 1584) and by the Ontario Labour Relations Board by way of legislation (An Act to amend The Labour Relations Act S.0. 1970, c. 85, ss. 23 and 28). In this context the excerpt from Vaca and Sipes (supra) reproduced in Gebbie (supra) and a similar sentiment expressed by Mr. Justice Goldberg in Humphrey v. Moore (supra at p. 356-357) become very important in placing a meaning upon the variety of wording found in section 79(4)(c). The legislative draftsmen was working with this background to the duty of fair representation and for this reason the Board prefers to give sections 79(l)(c) and 79(4)(c) a wide and liberal interpretation in order to insure that the Board's remedial powers remain meaningful and effective. Moreover, this reasoning, while based upon Vaca v. Sipes (supra) carries significance for persons and employees as well as employers. If a complaint makes out a prima facie justification for the joining of such individuals in order that the Board provide an effective remedy for the violation of a section 60 right, the Board will join such individuals.

In Leonard Murphy, supra, the Board found that the respondent trade union had violated what was then section 60 of the Act by refusing to process the complainant's grievance. The Board's decision in that case is illustrative of the reasoning which can lead to a remedial order of the sort to which the respondent trade unions consent in this case:

33. We must now determine what remedy will most appropriately cure the damage occasioned by the union's violation of the Act.

34. Section 79(4) of the Act gives the Board broad remedial authority and reads in part as follows:

79(4) ... and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

Without limiting the scope of possible orders the Act specifically endorses orders to cease doing the act(s) complained of, to rectify the act(s) complained of and to reinstate and/or compensate. That the section states that such orders may be made "notwithstanding the provisions of any collective agreement" implies that an order may override the terms of the collective agreement and thereby affect parties other than the specific offender. The breadth and flexibility of the remedial powers given the Board under section 79 enable the Board to respond directly to a specific violation of the Act and to as nearly as possible put the parties into the position they would have been in if the violation of the Act had not occurred.

35. In this case the arbitrary and bad faith conduct of the Union Committee denied the grievors their chance to have their grievances heard on the merits in arbitration. What remedy will most appropriately rectify this loss?

36. An isolated order for damages against the union would not be an appropriate remedy in the circumstances of this case; it is only in the event that the grievances are ultimately successful at arbitration the grievors will have suffered financially from the union's violation of section 60. If the grievors were properly discharged, the union's mismanagement will not have prejudiced the grievors beyond delaying the ultimate resolution of their rights.

37. Since the Board found that the violation of section 60 stemmed from the failure of the Union Committee to direct its mind to the merits of the grievances the Board might direct the union to reconstitute a Union Committee and reprocess the grievances under the terms of section 9 of the collective agreement. On reconsideration the decision might be made either to affirm the company's decision to discharge, to settle the grievances or to submit them to arbitration. The evidence indicates to the Board, however, that the positions of both the union and the company have been solidified over the six month period in question to make any resolution short of arbitration most unlikely. The company has repeatedly indicated that it does not intend to re-evaluate or modify its decision to discharge the two grievors. As well, the general membership of the union voted both on October 7, 1976 and January 6, 1977 to submit the matter to arbitration and has already appointed Mr. R. Sievers as its nominee. It is the opinion of this Board that a direction to the union to reprocess the grievances from the stage of establishing the Union committee would occasion the repetition of considerations which have already been made by the union in good faith and in a non-arbitrary manner and would not have the effect of persuading either the company or the union to a po­sition of compromise. The prejudice occasioned by further delays in­volved in remitting the grievances into the ordinary stream of the grievance procedure would not, in these circumstances, be counter-balanced by the prospect of a settlement short of arbitration.

38. Accordingly, the Board finds that a direction to the parties to arbitrate forthwith the grievances will most effectively remedy the violation of the Act. This order is made notwithstanding either the possibility that the Union committee may not yet have fulfilled its section 9 duty under the collective agreement or the possibility that the Union Committee has already in fact confirmed the employer's decision to discharge the grievors. The order therefore overrides the collective agreement in that (I) it dispenses with the requirement of the parties to proceed through the Union Committee stage as set out in section 9 of the collective agreement in order to advance to arbitraton and (2) it nullifies the effect that section 9 might have in preventing a grievance from proceeding to arbitration if it be found that the Union Committee has properly confirmed the company's decision to discharge the grievors.

39. In the event that the grievances are successful at arbitration, the Board orders that the union pay the compensation covering the period of time occasioned by the union's violation of section 60. The Board takes the view that the union's violation of section 60 began on September 3, 1976 with the meeting between the company, the Union Committee and Mr. Shaw, and that it is being remedied by this decision. Thus if the grievances of either Mr. Murphy or Mr. Shaw are successful the Board orders that the union bear the responsibility for their compensation from September 3, 1976 to the date of this decision.

As the Board's analysis in the Walker case indicates, a remedy which directs that an improperly abandoned or ignored grievance be processed to arbitration, despite any procedural impediment arising from the delay, best accomplishes the remedial object of restoring the complainant employee to the position he or she would have been in but for his bargaining agent's breach of section 68. In principle, the employer should be neither the victim nor the beneficiary of a trade union's breach of its duty to an employee. By assigning to the trade union responsibility for any monetary award referable to any delay caused by its breach, that most obvious source of prejudice to the employer is minimized. The financial prejudice to an employer of the delay in proceeding to arbitration is shifted to the party responsible for the delay. Other types of prejudice are conceivable, and there may be some types of prejudice whose consequences cannot be shifted to the party or parties responsible. That would be a relevant factor in assessing whether to make an order which compels arbitration on the merits, by analogy with the approach the Board has taken in cases dealing with the consequences of a complainant's delay in filing a complaint. With respect to the Board's treatment of delay, see Decor Wood Specialties Limited, [1974] OLRB Rep. Mar. 136; CCH Canadian Limited, [1977] OLRB Rep. June 351; Concrete Construction Supplies, [1979] OLRB Rep. Aug. 739; lrving Posluns Sportswear, [1979] OLRB Rep. Oct. 986; Sonic Transport Systems Limited, 11981] OLRB Rep. Oct. 1483; Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113 (judicial review denied at 1983 CanLII 1655 (ON HCJ), 42 O.R. (2d) 73); The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446; Chrysler Canada Ltd., [1983] OLRB Rep. Apr. 490; Caravelle Foods, [1983] OLRB Rep. June 875; and, John T Hepburn Limited, [1984] OLRB Rep. Jan. 39. In any event, when the Board exercises its jurisdiction to require that a grievance be arbitrated on its merits "notwithstanding the provisions of any collective agreement", it does so in order to fashion the most suitable remedy for a violation of the Labour Relations Act.

4. The language of the then section 79(4) referred to in Gebbie and Lan gmore and Imperial Tobacco Products was recast in the 1975 amendments to the Labour Relations Act (i.e. S.O. 1975, c.76, s. 20(l)) so as to read as indicated in the above-quoted passage from the Walker case. That language has not been amended since 1975, and now appears as section 89(4) of the current Act. The 1975 amendments generally expanded the Board's remedial jurisdiction (see Re Tandy Electronics and United Steelworkers of America, (1981) 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29 (Div. Ct.) per Cory, J. at p. 46-47). It has never been suggested that those particular amendments precluded the remedial authority described in Gebbie and Longmore and Imperial Tobacco Products.

5. Counsel for the Town concedes that the language of section 89(4), and particularly the words "notwithstanding the provisions of any collective agreement", are broad enough to give the Board jurisdiction to override the provisions of a collective agreement in remedying an unfair labour practice, and would give the Board jurisdiction to make an order in the form sought by the union here, directing a waiver of timeliness requirements of the collective agreement, were it not for section 44(6) of the Act. He argues that that section assigns jurisdiction over time limits exclusively to an arbitrator or arbitration board. Section 44(6) of the Act reads as follows:

Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

Counsel for the Town argues that the words "notwithstanding the provisions of any collective agreement" in section 89(4) do not permit the Board to fashion a remedy "notwithstanding a provision of the Labour Relations Act", which is what he says the Board would be doing if it did what section 44(6) permits an arbitrator to do. Counsel for the trade union respondents notes that the jurisdiction granted to arbitrators by section 44(6) can be eliminated by express language in a collective agreement. It follows from the Town's argument, she says, that the Board would still have the jurisdiction it has long exercised in section 68 cases where the relevant collective agreement expressly provides that subsection 44(6) shall not apply. This is, she suggests, a peculiar result. She argues that section 44(6) only prescribes that which will be read into a collective agreement in the absence of a contrary provision and, therefore, is analytically in no higher position than a collective agreement provision.

6. As counsel for the Town observed, subsection 44(6) effectively overrules the result in Regina v. Weiler et al, ex parte Union Carbide Canada Limited, (1968) 1968 CanLII 26 (SCC), 70 D.L.R. (2d) 333, 68 CLLC ¶14,137 (S.C.C.), which held that arbitrators have no power to relieve against failure to comply with contractual time limits unless the agreement expressly grants them that jurisdiction. Professor Palmer has described the state of the law before the enactment of subsection 44(6) in the following way:

The presence of time limits in the collective agreement and the failure of one or both of the parties to adhere to these limits in processing a grievance has given rise to many problems for labour arbitration boards. These problems have been dealt with in many diverse and often novel ways. For example, many awards have been based upon the distinction between a "mandatory" or "directory" time limit clause. In most cases, this distinction is one without a difference and, as such, has played havoc with the arbitration process and industrial relations in general.

(Palmer, Collective Agreement Arbitration in Canada, 2nd ed., 1983 (Butterworths) at p. 188)

7. Arbitrators are concerned with the settlement by arbitration of differences between the parties to a collective agreement concerning its interpretation, application, administration or alleged violation. Subsection (6) and other subsections of section 44 address the powers of the arbitrator, procedural and remedial, in adjudicating those differences. Differences potentially arbitrable under a collective agreement can also form the proper subject matter of an unfair labour practice complaint over which this Board will have jurisdiction despite any concurrent arbitral jurisdiction. The Board approaches such matters from a potentially different perspective and with a broader remedial repertoire: see Valdi Inc., [1980] OLRB Rep. Aug. 1254. Where there is a congruence of the complaint's subject matter and an arbitrable issue, Board deference to arbitration on that issue, if it occurs, presupposes that the arbitration process will be procedurally and remedially effective in settling the issue: Imperial Tobacco Products, supra; Valdi Inc., sup ra. The possibility that an arbitrator could reinstate a discharged employee does not preclude the Board's jurisdiction under section 89(4) to reinstate if the discharge constitutes an unfair labour practice. Similarly, the assignment to an arbitrator of jurisdiction to relieve against a failure to abide by contractual time limits as part of the arbitration process is not inconsistent with the Board's having remedial jurisdiction sufficiently broad for it to do the same in response to and in the course of resolving an unfair labour practice complaint. The simple answer to the argument of counsel for the Town is that section 44(6) does not expressly describe the power thereby conferred on arbitrators as "exclusive". Significantly, subsection 44(6) [then 37(Sa)] was added to the Act by section 10 of S.O. 1975, c.76, the same legislation by which this Board's remedial authority was enlarged and re-described. Had the Legislature intended to carve the subject matter of subsection 44(6) out from the balance of the Board's remedial jurisdiction, it could and, in my opinion, would have used explicit language. As it did not, I am satisfied the Board has the jurisdiction counsel concedes it would have had but for section 44(6).

8. In my oral ruling of April 9th, I said:

For reasons to be delivered at a later date, I am satisfied that in fashoning remedies for violations of the Act, the Board does have jurisdiction in appropriate circumstances to order that time limits be waived by the parties to a collective agreement.

For the reasons now set out in this decision, that ruling is hereby confirmed. The oral ruling went on to provide:

Before any remedy can be granted, however, a violation must be established. If a remedy sought affects the employer, as the remedy sought does here, the employer is entitled to a hearing with respect to any issues relating to the granting of such a remedy, including issues as to the existence of a breach of the Act and as to circumstances which might lead the Board to grant any particular, or any, remedy for the violation. In this regard, delay in filing the complaint and the reasons for the delay can have an important effect on remedy.

The Town is a respondent in a real sense, and will be so treated in these proceedings. It is entitled to a hearing on any issue which materially affects it. The issue of remedy is such an issue. That issue does not arise until a breach of the Act has been established.

In short, the Board cannot dispose of this complaint in the manner asked by the complainant and trade union respondents without hearing evidence and determining that the evidence warrants the relief sought. In essence, the Town puts the complainant to the proof of her case insofar as it may affect the Town. That is what the complainant must do.