Ontario Labour Relations Board
[1985] OLRB Rep. March 420
2310-83-U John Glykis, Complainant, v. Hotel Employees Restaurant Employees Union, Local 75 and The Four Seasons Hotels Limited (Inn on the Park), Respondents
BEFORE: Corinne F. Murray, Vice-Chairman.
DECISION OF THE BOARD; March 22, 1985
1On October 31, 1984, a decision was issued in this matter (see Four Seasons Hotels Limited (Inn on the Park), [1984] OLRB Rep. Nov. 1406), in which the Board concluded that the respondent union (hereinafter "the union") had contravened section 68 of the Labour Relations Act, in the manner it handled the complainant's termination from his employment with the respondent hotel (hereinafter "the hotel"). Specifically, the Board found that the union's failure to inform the complainant, in a proper manner, as to the time two crucial union meetings were being held to consider the complainant's grievance, constituted gross negligence, and, therefore, arbitrary within the meaning of section 68. By way of remedy, the Board directed that the complainant be extended an opportunity to attend at the next scheduled executive and membership meetings and present his case with or without the assistance of his counsel. The Board further directed that the hotel waive the time limits of the collective agreement, should the executive or membership decide to refer the complainant's grievance to arbitration.
2Subsequent to the issuance of the Board's decision, the Board received a letter dated November 19, 1984, from counsel for the complainant, the text of which was as follows:
Please be advised that we have received the decision dated November 8, 1984, with respect to the above-noted matter.
After reviewing this decision, we would ask that the Ontario Labour Relations Board reconsider its decision pursuant to Section 106 of the Labour Relations Act, as amended.
This request for reconsideration involves a number of items as follows:
There was no reference to the issue of costs. You will note that in our submissions we requested that Mr. Glykis be granted costs for the application under Section 89 of the Labour Relations Act;
The decision states that Mr. Glykis is to reapply for arbitration before his own union. As stated in our submissions, we asked that the Board consider the evidence it has heard and arbitrate the matter itself, that an Order be granted and that Mr. Glykis be reinstated to his employment and compensated for his loss of income and damages. In the alternative, we asked at the time the submissions were made that the Board refer the grievance to arbitration itself. In the circumstances, we ask that this be done rather than having Mr. Glykis reapply to the union to hear his ease requesting arbitration.
As Mr. Glykis and his union have been adversaries, it is very questionable, after all that has transpired, as to whether or not the union could be impartial in this matter.
There was also a request that if the matter were re-submitted to arbitration Mr. Glykis have an opportunity to have his own counsel represent him at the hearing rather than counsel for the union, again on the basis that there would be an appearance of bias if the solicitors who acted for the union with respect to the complaint herein were to represent Mr. Glykis through the union in his arbitration hearing.
We feel it goes without saying that if this matter is referred to arbitration by the Board on the basis that Mr. Glykis is to retain solicitors of his own choosing then the union ought to bear Mr. Glykis' legal expenses. Again this was raised in our submissions.
More importantly, we would ask that the Order be amended to include a provision that the Board remain seized of this particular matter with respect to the arbitration procedure in order that the Board may intervene should the union not fairly represent Mr. Glykis' interests during the course of arbitration. This would be in view of the fact that Mr. Glykis and his union have been adversaries.
The request that the union bear all of the costs of the hearing before the Board and any subsequent proceedings is based on the fact that it is unfair that due to the union's breach of the Labour Relations Act Mr. Glykis would have to bear any legal expense for the enforcement and protection of his rights.
If you have any questions, please feel free to contact the writer.
The Board forwarded copies of this letter to the union and the hotel for their comments.
3By letter dated December 12, 1984, counsel for the union responded as follows:
I am writing in response to your letter of December 7, requesting a reply to Mr. Carlisi's letter of November 19.
In our respectful view, nothing unusual occurred in this case which would warrant a departure from the Board's accepted practices of declining to award costs. Indeed, there is some doubt as to whether the Board has the jurisdictional power to award costs in view of the fact that the Act does not confer any specific authority in this respect. On this point, I would refer the Board to the unreported decision of the Supreme Court of Canada dated November 22. 1984, in Syndicat des employes de production du Quebec et de l'Acadie v. Canada Labour Relations Board v. Canadian Broadcasting Corporation.
With respect to Mr. Carlisi's claim that the Board ought to have ordered the Union to take the case to arbitration, the following observations are submitted.
This claim was argued in Mr. Carlisi's original submissions and no additional evidence or circumstances have been presented warranting a reconsideration of the Board's decision on this claim.
This claim is inconsistent with the nub of the case presented to the Board to the effect that the Union's error lay in not providing to Mr. Glykis an opportunity to present his position to the Executive Board and the Union membership as a whole.
The Board's order in its decision is directly responsive to the complaint of Mr. Glykis as described above.
To have the Board order the Union to refer the matter to arbitration has the effect of superseding the right of the Union membership to conduct its affairs within the requirements of s. 68 of the Act.
Nothing in the evidence warrants the assumption that the Union membership and the Union Executive Board is unable to give a fair hearing to Mr. Glykis. Furthermore, the suggestion that Mr. Glykis and the Union have been adversaries in the past is inconsistent with the record of grievances, including an arbitration hearing, conducted by the Union on behalf of Mr. Glykis prior to the events giving rise to the instant case.
For the foregoing reasons, we respectfully submit that the Board's decision ought not to be reconsidered. Furthermore, we would advise that the hearing before the Executive Board is scheduled to take place shortly and the hearing before the General Membership will take place in the meeting scheduled for the month of January. Our client has been unable to contact the grievor through his last known address, but has managed to alert the grievor of these events by a letter sent in care of Mr. Carlisi.
4By letter dated December 28, 1984, counsel for the hotel responded as follows:
We are solicitors for Inn on the Park, the Employer in the above-noted proceedings, and have recently been retained to act on its behalf with respect to the complainant's request for reconsideration herein. We therefore request that a copy of all future correspondence and documentation be addressed to the writer as well as to Ms. Dolores Zimak, on behalf of the Employer.
On behalf of the Employer we wish to reply to the complainant's request for reconsideration as follows. In accordance with the Board's well-established policy in respect of requests for reconsideration, it is submitted that the Board should not reconsider its decision unless the complainant proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and which would be practically conclusive, or if the complainant seeks to make representations which he had no opportunity to raise previously. The complainant cannot fulfill these criteria in this case. The complainant does not suggest that it wishes to present new evidence which was not previously available, and he was accorded every opportunity to make full submissions at the previous hearing of this matter. We note that the complainant was indeed represented by Counsel at the previous hearing and took advantage of his right to present evidence and make representations through Counsel.
We agree with Counsel for the Union when he suggests that nothing in the evidence warrants the assumption that the Union is unable to treat Mr. Glykis fairly. To the contrary, it appears that the Union has in the past represented Mr. Glykis in countless complaints, grievances and Arbitration proceedings.
In summary, we respectfully submit that there is no basis for reconsidering the Board's decision in this matter.
5The Board's jurisdiction to reconsider its own decisions is found in section 106(1) of the Act which reads as follows:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
6The principles which guide the Board in the exercise of its reconsideration powers are summarized in the following terms in its decision in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, at paragraph 4:
To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened.
Due to the wide-ranging nature of the complainant's counsel's letter, I have treated it not only as a request for reconsideration, but also as a request for reasons for rejection of some of the remedies sought by the complainant.
7With this in mind, I will consider the matters raised by the complainant's counsel in the order they are dealt with in his letter. I did not grant the complainant's request that he be compensated for the "costs" incurred in his pursuit of the unfair labour practice complaint because it is the Board's general practice, in exercising its remedial powers under section 89, not to grant costs to the successful party. The Board has, in other cases prior to the complainant's, thoroughly canvassed the policy issues involved in this remedial area and has determined that there must be extraordinary circumstances or other overriding policy considerations before costs will be awarded to the successful party in a section 89 complaint (see Radio Shack, [1979] OLRB Rep. Dec. 1220; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755 for a fuller statement of the Board's rulings). Neither of these conditions was present in the complainant's case and it was no different, for the purposes of an award of costs, from the numerous cases in which the Board finds a violation of the Act. It was for this reason that I rejected the request for an award of "costs". Nothing in the letter requesting reconsideration causes me to change this aspect of the decision of October 31, 1984.
8In requesting that the Board arbitrate the complainant's discharge grievance itself or refer the grievance to arbitration directly, rather than resubmit the grievance for consideration by the union executive and membership, counsel is again merely repeating the submissions made at the hearing. The Board has stated on numerous occasions that success in proving that section 68 has been breached does not automatically confer on the complainant the right to have his grievance arbitrated (see, for example, Massey-Ferguson, [1977] OLRB Rep. April 216; Bedard Girard, [1981] OLRB Rep. Oct. 1338). Where the Board does grant such a remedy, the Board, in normal circumstances, does not assume the task of arbitrating the grievance itself because of the longstanding policy of deferring to the arbitration process of the collective agreement where such process will yield a complete remedy (see Valdi Inc., [1980] OLRB Rep. Aug. 1254). In this case the loss to the complainant resulting from the contravention of section 68 of the Act was the deprivation of the opportunity to be present at the executive and membership meetings and present his case. As the Board noted at paragraph 16, the complainant "clearly missed an opportunity which he should have had and could have had according to internal union procedures if he had been given clear times and places of these meetings". The Board's remedial order directly addresses this "loss". Therefore, on this basis alone, I do not consider it necessary to change my decision regarding the request for arbitration. In any event, this aspect of the complainant's reconsideration request has been overtaken by events. A copy of a letter dated January 10, 1985, written by counsel for the complainant to the union and forwarded to the Board, indicates that the complainant was provided an opportunity to present his case to the union membership, and that the membership voted to overrule the executive board's decision. As a result, the complainant's grievance was to be referred to arbitration immediately. Even if it could be said that I was wrong in not ordering arbitration, the action of the membership of the union has removed any necessity for the Board to reconsider the adequacy of its remedy of returning the grievance to the normal union procedures as compared with the requested remedy of arbitration.
9The complainant also requested at the hearing that, if the matter proceeds to arbitration, he should have the opportunity to retain his own counsel to present the arbitration on his behalf. This request has also been repeated in the application for reconsideration. The Board did not see then, and does not see now, any justification for such a claim. Nothing in the evidence suggests any malice or ill will towards the complainant by officials of the union. The wrongdoing attributed to the union stemmed from "gross negligence". On the contrary, as indicated in paragraph 3 of the Board's decision, the complainant has received the union's assistance without complaint on many previous occasions. The assistance rendered by the respondent following the complainant's termination in October of 1983, though falling below the standard required by section 68, was not tinged in any way by bad faith or active opposition to the grievor himself. I am not prepared, in the circumstances, to assume that the union will not provide proper representation to the grievor should the matter proceed to arbitration. This is consistent with the Board's jurisprudence. The Board stated in Phillip Wayne Bradley, [1983] OLRB Rep. June 865, at paragraph 3:
. . . .Where the Board does grant such remedy [arbitration], it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing, serious concerns that the complainant will not receive a nonarbitrary, non-discriminatory, good faith treatment by the [union] in the course of its presentation of the arbitration (see, for example, Leonard Murphy, 11977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Girard, supra).. . . An order for separate, independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent [union] is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, 1976 CanLII 196 (SCC), [1977] 2 S.C.R. 537) and would have, except for a violation of section 68, had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.
If indeed the union fails to comply with its duty of fair representation at the arbitration stage, it will expose itself to another complaint before the Board, and the complaint, if proven, will be remedied.
10Finally, the request for reconsideration asks that "the Board remain seized of this particular matter with respect to the arbitration procedure in order that the Board may intervene should the union not fairly represent Mr. Glykis' interests during the course of arbitration". The Board in its decision found a violation of the Act and fashioned a remedy to respond to it. If there is a failure to comply with that order, procedures are available to enforce the Board decision. The Board is not prepared to go beyond this, and remain seized, in order to deal with speculative future violations of the Act. As indicated above, if the union fails to represent the complainant at arbitration in accordance with the duty in section 68, it can be the basis for a separate unfair labour practice complaint. It is unnecessary for me to remain seized in anticipation of possible future breaches of the Act.
11In these circumstances, the Board declines to reconsider, vary or revoke its decision in this matter dated October 31, 1984. The application for reconsideration is dismissed in its entirety.