Baldev Mutta v. United Steelworkers of America, Local 7155, 1984 CanLII 966

[1984] OLRB Rep. January 156

1278-83-U Baldev Mutta, Complainant, v. United Steelworkers of America, Local 7155, Respondent, v. Waterloo Metal Stampings Ltd., Intervener

BEFORE: Kevin M. Burkett, Alternate Chairman.

APPEARANCES: Eva E. Marszewski for the complainant; Brian Shell, Charlie Wightman, Wilf Bowen and Cecil Wilton for the respondent; D. Jane Forbes-Roberts, Bob Wetloffer and Wayne McMichael for the intervener.

DECISION OF THE BOARD; January 30, 1984

1. The style of cause in this complaint is amended to show Waterloo Metal Stampings Ltd. as an intervener instead of as a respondent.

2. This is a complaint filed under section 89 of the Labour Relations Act alleging a breach of section 68 of the Act; the section which makes it unlawful for a trade union to act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the bargaining unit that it represents. Specifically, it is alleged that:

On or about March 29, 1982 the grievor was dealt with by Charles Wightman, Representative, United Steelworkers of America contrary to the provisions of section 68 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: fail to adequately pre­pare for an arbitration hearing held on that date between the Respondent company and the respondent union involving a grievance against the dis­missal of the Complainant, did not interview potential witnesses, did not call witnesses to support the Complainant's position, did not adequately cross-examine the company's witnesses, did not seek advice or take in­structions from the Complainant but instead from Wilfred Boland, Pres­ident of the Local, and a political opponent of the Complainant, thereby acting in bad faith, and in an arbitrary and discriminatory manner.

3. Both the respondent trade union and the intervener company object to this matter proceeding to a hearing on the merits because of the delay in the filing of the complaint. The alleged breach of the duty of fair representation occurred on March 29, 1982 and the com­plaint was not filed until September 6, 1983. The matter was adjourned on October 20, 1983, the date scheduled for hearing, following which the respondent made a request for particulars which were delivered on January 16, 1984. The date scheduled for hearing had been set as January 19, 1984. The respondent and the intervener rely on the considerations and criteria found in Re Corporation of the City of Mississuaga, [1982] OLRB Rep. March 420 and Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113 in support of their request to have the Board exercise its discretion under section 89(4) of he Act to refuse to hear the com­plaint on its merits. Reference was also made by the respondent trade union to the Board de­cision in Stelco Inc. [1983] OLRB Rep. Dec. 2102, in support of its request. The complainant also relies on the criteria set out in the above referred to cases and in addition cites General Motors of Canada Limited, [1982] OLRB Rep. Feb. 9, North York General Hospital, [1982] OLRB REP. Aug. 1190, The Corporation of the City of Thunder Bay, [1983] OLRB Rep. May 781, Caravelle Foods, [1983] OLRB Rep. June 875, Conestoga College of Applied Arts & Technology, [1983] OLRB Rep. June 882 and Crovac, [1983] OLRB Rep. June 886, in support of its position that the Board should determine the matter on the merits. The com­plainant argues that there is justification for the delay, there is no monetary compensation sought by way of remedy, that fading recollection is not an issue in this case given the nature of the relationship between Mr. Mutta, the complainant, and Mr. Bowen, the union president, and that there are compelling labour relations issues raised in this case.

4. The Board rendered an oral decision at the hearing in this matter on January 19, 1984. The Board hereby confirms its oral ruling which was as follows:

(1) The relevant considerations to be taken into account in deciding whether to exercise our discretion not to inquire into a complaint un­der the Act which has not been filed promptly are set out at para­graph 22 of the decision of the Board in The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420. They are:

— The length of the delay and the reason for it.

— When the complainant first became aware of the alleged statutory violation.

— The nature of the remedy claimed and whether it involves res­trospective financial liability or impacts on the pattern of rela­tionships.

— Whether the claim is of such a nature that fading recollection, the unavailability of witnesses, deterioration of records or disposal of records would hamper a fair hearing.

The labour relations policy considerations which underlie the Board's reliance on these criteria are found in The Corporation of the City of Mississauga, supra, and Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113. In addition, the Board takes into account con­siderations related to the conduct of a fair hearing.

(2) For purposes of deciding whether we should exercise our discretion to entertain this complaint on its merits the Board is assuming as proven:

(a) The chronology of events as recited by counsel for the complain­ant including the fact that the arbitration hearing lasted only three hours.

(b) The nature of the relationship between Mr. Bowen, the union president and Mr. Mutta, the complainant, as recited by counsel for the complainant and the conclusion that:

"the relationship between Mr. Mutta and Mr. Bowen was such that Mr. Bowen would not have forgotten the relevant discussions and exchanges."

(c) That Mr. Mutta discussed with the union the calling of certain witnesses who would have testified to his past union activities but did not tell anyone from the union in advance of the arbitration hearing that he considered his termination to have been for anti-union reasons.

(d) Mr. Mutta advised Mr. Bowen after the release of the arbitration award upholding his discharge that he lost because the union did not really put an effort into the case, never called certain wit­nesses and never presented medical facts.

(3) In this complaint, filed on September 6, 1983, the complainant asks the Board to review the conduct of the union in connection with an arbitration hearing conducted on March 29, 1982; some 18 months before the filing of the complaint and some 23 months prior to the commencement of the hearing on January 19, 1984. Accepting that Mr. Mutta conducted himself as he should have up to June 14, 1982 (i.e. applied for legal aid and arranged for a meeting with a lawyer in order to obtain a legal opinion within six weeks), the passage of some 15 months between the date of that meeting and the date of the filing of the complaint can be attributed to his inactivity. Mr. Mutta was asked by his counsel to obtain additional documentation on June 14, 1982. If he had done so with dispatch a legal opinion could have been drafted and the matter either abandoned or pursued some time in the summer of 1982. Mr. Mutta failed to provide the necessary documentation before being called away to India to attend to an ur­gent personal matter on October 2, for a period of almost 4 months. Although he met with his lawyer again in February/March, no steps were taken to proceed with the matter and in June Mr. Mutta was advised to obtain other counsel. He did so in August and the com­plaint was filed in September, 1983 even though Mr. Mutta was again in India; this time because of the illness of his mother. The union, therefore, was put on notice for the first time in September, 1983 that it must defend its conduct of an arbitration hearing which it con­ducted in March, 1982. Having regard to the foregoing, the Board is satisfied that in this case the delay has been substantial and without any compelling reason.

(4) Furthermore, the relief sought is the relitigation of the complainant's discharge and, if granted, would require the parties to the collective bargaining relationship "to do battle over an individual's rights which they have both considered no longer an issue in their relationship be­cause of an elapse of time." (Caravelle Foods, [1983] OLRB Rep. June 875).

(5) Even accepting, as the union maintains, that Mr. Bowen's powers of recollection would not be impaired, Mr. Wightman, who, on behalf of the union prepared and presented the arbitration that is in issue and who is named in the complaint as the union official who breached the duty of fair representation, disposed of his notes in December, 1982 (some nine months after the hearing). In the absence of any indication to him by Mr. Mutta that his case carried with it broader ramifications (i.e. anti-union motivation) than suggested on the face of the grievance, it must be found that his powers of recollection and conversations which he had in connection with the particular situa­tions (as distinct from the many other grievances and arbitrations that he processes) would have been impaired with the passage of time.

(6) Having regard to the foregoing, it is our view that an inquiry into this matter at this time, notwithstanding whatever inferences could be drawn from the fact that the arbitration hearing lasted only three hours, carries with it the risk of substantial prejudice to the respond­ent trade union.

(7) The complainant submits that the Board should inquire into the merits of the complaint notwithstanding the delay in its filing because it raises compelling labour relations issues, specifically, the failure of a local president to carry out his duties. All section 68 complaints assert a failure on the part of some union official to have carried out his responsibilities as he should have.

(8) Given the period of delay, the inadequacy of the explanation and the potential for prejudice to the respondent if we were to inquire into the merits, it is the Board's decision not to exercise the discretionary power given to it under section 89 of the Act to inquire into the mer­its of this complaint.

5. Having regard to all of the foregoing, this complaint is hereby dismissed.