[1986] OLRB Rep. May 684
0666-85-U Norman F. Stroesser, Complainant, v. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America U.A.W, Local 444 and Chrysler Canada Limited, Respondent
BEFORE: Robert J. Herman, Vice-Chairman.
APPEARANCES: Patrick Ducharme on November 26 and 27, 1985, Paul Nesseth on March 25 and 26, 1986, for the complainant; L. A. MacLean, Jim O'Neil and Gerry Bastien et al, for U.A.W. Local 444; Leonard P. Kavanaugh and David Deluzio for Chrysler Canada Ltd.
DECISION OF THE BOARD; May 30, 1986
This is a complaint filed on June 17, 1985 pursuant to section 89 of the Labour Relations Act, alleging that the respondent union and employer violated section 68 of the Act on or about September 10, 1981 in that the respondents neglected to advise the complainant that his grievance had been withdrawn.
The complainant, Norman Stroesser, had been a long time employee of the respondent company, and as such had been a member of the bargaining unit represented by the respondent union. On or about September 18, 1979 the complainant was discharged, and the respondent union forthwith filed a grievance on his behalf, alleging that the discharge was improper. That grievance was withdrawn in early September of 1981, and the complainant alleges that the respondent union violated the provisions of section 68 of the Act when they neglected to inform the complainant that his grievance had been so withdrawn.
This complaint was not filed until June 17, 1985 and both respondents submit that the Board ought not to entertain the present complaint, in light of the extreme delay between the events giving rise to this complaint and the filing of the complaint itself. Before embarking upon the consideration of the merits of this complaint, the Board entertained evidence and submissions with respect to this issue of delay.
The essential facts are not in dispute. When the respondent Chrysler Canada Limited terminated the employment of the complainant, it was purportedly for "actual or attempted theft or misappropriation of property". As noted above, that discharge was grieved by the union. At the same time as that grievance was proceeding through the grievance procedure, the complainant was involved in various criminal proceedings arising out of the circumstances which led to his discharge.
The union withdrew the complainant's grievance in early September, 1981. Notwithstanding the allegations set out in the complaint filed in this proceeding, the evidence given at the hearing indicates that the complainant was notified shortly thereafter that his grievance had been withdrawn, and he admits he was aware of this fact no later than October, 1981. When Mr. Stroesser realized that his grievance had been withdrawn, he attended at the office of the lawyer handling his criminal matters, and was advised not to worry about the withdrawal of his grievance, since if he won his criminal proceedings his discharge could still be
arbitrated. Relying on this advice, the complainant took no further steps. He did not advise the union that he was in any way dissatisfied with its decision to withdraw his grievance.
By this time, the complainant had discharged the first lawyer he had retained for his criminal charges, and had retained different counsel to assist him with those charges. The complainant testified that neither of these two counsel had ever advised the complainant of his right to file a section 68 complaint with this Board. When the criminal matters were finally resolved, in early November, 1983, the complainant switched lawyers again, retaining the law firm representing him in these proceedings, and he was for the first time advised that he could file a complaint with this Board and indeed that he might have to resort to filing such a complaint in order to obtain an arbitration of his discharge.
In the period from his discharge in the fall of 1979 until his retention of current counsel in November of 1983, another former employee, John Connoy, who had also been discharged for alleged criminal activity had similarly been fighting those charges in the criminal courts. Mr. Connoy had been successful in his criminal proceedings, and had filed his own section 68 complaint with this Board on March 10, 1983. As noted, when Mr. Stroesser first met with his current counsel, sometime before November 14, 1983, he was told that he might have to file a complaint with this Board. He was also advised that if John Connoy won his section 68 complaint, and any resultant arbitration, there would be no problem with Mr. Stroesser winning his, but that there was nothing he could do until the Connoy arbitration was resolved. Mr. Stroesser explained the long delay in the filing of this complaint by his reliance on this advice from his counsel, and awaiting the results of the Connoy arbitration.
Mr. Stroesser's counsel forwarded to the union a letter, dated November 14, 1983, indicating that Mr. Stroesser was complaining about his grievance being dropped, without his prior permission, and requesting that the union advise counsel as to the circumstances surrounding the withdrawal of his client's grievance. Consequent upon that letter, counsel met with various officers of the union on November 28, 1983. During that meeting, those present agreed that if Mr. Connoy lost his grievance, then the Stroesser matter would be at an end and that no section 68 complaint would be filed. Several officers in attendance at that meeting testified as to what occurred. Counsel for the complainant urged upon the Board a different interpretation of that meeting, but it must be noted that counsel who was at that meeting, from the same firm, did not testify before this Board. The Board is satisfied that the union made abundantly clear to the complainant's counsel that it was not agreeing to try to reinstate the complainant's grievance, even if Mr. Connoy ultimately was successful in his arbitration.
In a further letter, dated January 23, 1984, counsel advised the union that he would be continuing to seek redress against the union for their failure to have properly represented the complainant. That letter was responded to by counsel for the union on March 14, 1984. That response dealt with various outstanding matters involving other clients represented by the complainant's counsel, including John Connoy, and noted, in part, as follows:
''Again, with respect to the withdrawal of the Norman Stroesser grievance, the position of the union is, that it properly performed all of its obligations with respect to the representation of this grievor as required by it under the Labour Relations Act. It is now a matter of surprise to my clients that you are making belated accusations against the U.A.W. when no complaint or objections were taken before. You may take it that your complaints with respect to the handling by the U.A.W. of the grievance of Norman Stroesser, are also rejected."
Nothing further happened until counsel for the complainant was advised in a letter dated March 12, 1985 that the union had lost the arbitration over the discharge of John Connoy. This complaint was filed on June 17, 1985. There was no explanation offered for the delay between March 14, 1984, when union counsel advised complainant counsel by letter that the union denied any liability, and June 17, 1985, when this complaint was filed, except for the explanation noted above, that the complainant was advised by counsel that he had to wait for the results of the Connoy arbitration.
The Board approach to the consideration of delay in the filing of a complaint pursuant to section 89 of the Act has been canvassed in numerous decisions. As the Board stated in Gary Hopkins, [1985] OLRB Rep. May 684:
When events which form the subject matter of a complaint under section 68 of the Act occur a long time before the complaint is filed, the Board can call upon the complainant to show cause why the Board ought to exercise its discretion under section 89 of the Labour Relations Act to hear the complaint. In such an enquiry, the onus is on the complainant to convince the Board that the complaint ought to be heard (Stelco Inc., supra).
It is true that the Act does not contain a strict limitation period for the filing of complaints under section 89. Surely this is to allow for the necessary flexibility in dealing with individual cases to ensure that justice is done to all parties. However, this Board has developed a clear jurisprudence which deals with the necessity of weighing the legitimate concerns of all members of the labour relations community. The Board's approach and its considerations have been described in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 as follows:
It is by now almost a truism that time is of the essence in labour relations 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 matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Loskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited (1966) 18 L.A.C. 51 (Arthurs)).
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 response 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.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it: when the complainant first became aware of the alleged statutory violation: the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention: and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years,
In the case at hand, one can be sympathetic with an individual's difficulty in obtaining competent legal advice and with the frustrations which must have resulted from relying upon a lawyer who was subsequently disbarred. The legal profession may not have served the complainant very well. However, this Board has said many times that the respondent cannot be made responsible for any omissions or negligence on the part of the complainant's own agents. See Sheller-Globe of Canada. Ltd., supra and Chrysler Canada Limited, supra.
In a similar vein see Catherine Whittaker, [1985] OLRB Rep. Apr. 621, Savage Shoes Limited, [1983] OLRB Rep. Dec. 2067, Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113.
The complaint as filed alleges that the union did not comply with the standards required of it under section 68 of the Act with respect to its failure to advise the complainant that its grievance had been withdrawn. The evidence, however, disclosed that the complainant had been advised of the withdrawal of his grievance a relatively short time after the grievance was withdrawn. The complainant himself testified to this effect. However, the Board has assumed, for consideration of the delay issue, the complainant has also been alleging impropriety because of the withdrawal of the grievance, and not merely the lack of notice that the grievance had been withdrawn.
Mr. Stroesser was aware that his grievance had been withdrawn by October, 1981. Mr. Stroesser had by then retained counsel for his criminal proceedings, who had advised him that there was nothing that could be done about his employment status until his criminal proceedings were finished. That counsel was aware, at the time this advice was given, that Mr. Stroesser's grievance had been withdrawn. Neither the respondent union nor the respondent company were notified at that time that Mr. Stroesser was dissatisfied because his grievance had been withdrawn. The first time the union was made aware of Mr. Stroesser's dissatisfaction was when they received a letter from Mr. Stroesser's then counsel, dated November 14, 1983, objecting to the withdrawal of the grievance. Insofar as the union was concerned, there had at that stage already been a two year delay between the time Mr. Stroesser was informed that his grievance had been withdrawn and their first awareness that he might be dissatisfied with that decision. The respondent company remained completely unaware of this dissatisfaction.
Contrary to the advice Mr. Stroesser was apparently receiving from his counsel (again, who did not testify in these proceedings), the union in November, 1983, made clear to counsel that they were not agreeing to attempt to reinstate the complainant's grievance, even if the Connoy arbitration proved ultimately successful. The union made this clear to Mr. Stroesser's counsel at the meeting on November 28, 1983.
Although the union might have been unsure of the complainant's position after that meeting, counsel for Mr. Stroesser sent a letter to the union dated January 24, 1984, which clearly indicated that Mr. Stroesser was still looking to the union for its failure to represent him properly. In response, in a letter dated March 14, 1984 from union counsel, the union again clearly stated that it denied any responsibility or liability for any failure to properly represent Mr. Stroesser. At that stage, it must have been clear to counsel for Mr. Stroesser that the union continued to deny that it had in any way breached section 68. It must also have been clear to counsel for Mr. Stroesser, given the conversations which occurred at the meeting with the union officials on November 28, 1983, that the union was not agreeing that they would again take up Mr. Stroesser's case if Mr. Connoy won at arbitration. Notwithstanding these factors, this complaint was not filed until approximately one year and three months later, on June 17, 1985. As noted earlier, this delay remains unexplained and unjustified. Counsel knew or ought to have known that a section 68 complaint might have to be filed; indeed, the very same counsel had filed such a complaint in March of 1983 on behalf of Mr. Connoy.
At best, there was a period from October, 1981, until November 14, 1983 (when counsel first advised the union of the section 68 potential), during which the complainant was aware that his grievance had been withdrawn but during which the union was not in any way put on notice of the complainant's dissatisfaction with that step. There was an additional delay from March 14, 1984, until the filing of this complaint on June 17, 1985, a period of approximately one year and three months. Taken cummulatively, the length of the delay insofar as the union was concerned was several months greater than three years. The respondent company was not advised of the complainant's concern until the filing of the complaint, and from their perspective, there was an unbroken period of delay of approximately three and one half years.
The events giving rise to the section 68 complaint took place over three and a half years ago. The reason for most, if not all, of this delay was the advice received by the complainant from his different counsel during this period. The first two counsel retained by the complainant both advised him that nothing could be done about his employment difficulties until his criminal matters had been completely resolved. In the Board's opinion that advice was incorrect , insofar as the resolution of those criminal proceedings would not effect a complainant's entitlement to file and pursue a complaint under section 68 of the Act. The complainant's third lawyer, retained after the criminal matters were resolved, advised the complainant that this complaint could not be filed until such time as the Connoy arbitration had been completed. Again, that advice was incorrect.
Neither the union nor the company were in any way responsible for any of the periods of delay involved. The Board is sympathetic to the difficult time the complainant appears to have had during the period in question, and we adopt the opinion expressed by the Board in Gary Hopkins, supra that "the legal profession may not have served the complainant very well". However, as neither the respondent union nor the respondent company were in any way responsible for this delay and the advice received by the complainant from his counsel, it would be unfair for them to bear responsibility for the effects of such advice. Those are matters that must be resolved between the complainant and his counsel directly. In the instant case, it is clear that the passage of time would seriously prejudice the respondents' ability to present their case and have a fair hearing, and both respondents would suffer the additional prejudice of unjustified disruption to their collective bargaining relationship.
For all these reasons, the Board exercises its discretion under section 89 not to inquire further into the complainant's allegations and this complaint is therefore dismissed.