[1986] OLRB Rep. June 731

0201-86-M Local 787 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant, v. J. H. Lock & Sons Limited, Respondent

BEFORE: Patricia Hughes, Vice-Chairman, and Board Members M. A. F. Stockton and P. J. O'Keeffe.

APPEARANCES: L. Steinberg, J. Cawicato and M. Sumka for the applicant; G. W. Adams, Q. C., D. Gilbert, W. R. Ens and Allan Campbell for the respondent.

DECISION OF THE BOARD; June 16, 1986

1. This is a reference under section 124 of the Labour Relations Act ("the Act"). The applicant alleges that Michael Sumka was dismissed by the respondent when the respondent failed to recall him after laying him off for shortage of work. The respondent denies that Sumka had any right to be recalled and therefore that he was not dismissed.

2. The hearing into this matter began on May 5, 1986. At the beginning of the hearing, counsel for the respondent raised the following preliminary objections to our hearing this reference:

(1) Sumka is not an employee and therefore has no status to bring a complaint before the Board; since the union does not have status because this is not a policy grievance, there is therefore no grievance properly before the Board.

(2) The notice requirements under the Act were not met.

(3) The grievance is out of time since it was not filed within the 5-day limit provided in the collective agreement for the filing of a grievance.

(4) There are no recall rights in the collective agreement and therefore there is no basis for the grievance.

3. In addition, the respondent raised questions of the relevance of the Service Agreement covering the applicant and the respondent and of onus and procedural order.

4. After recessing to consider each of the objections, we ruled that we were not prepared to dismiss the application at this time on any of the preliminary grounds raised by the respondent. The respondent requested written reasons for our decision. Accordingly, we here set out, in reverse order, our reasons for our decision to hear the reference on the merits and for our decisions with respect to the status of the Service Agreement and onus. The parties came to an agreement with respect to the order in which the parties will adduce evidence.

5. The applicant argued that the employer should adduce evidence first since this was a dismissal case. The respondent argued that this was not a dismissal case and therefore the applicant should adduce evidence first. The questions of onus and of procedure should be kept separate. The onus remains on the grievor throughout. There is no reverse onus provision involved here. However, the employer normally goes first in discharge cases because the employer is more likely to have the facts available to explain why the grievor was discharged. Once the applicant has made a prima facie case that there was a collective agreement, that the grievor was subject to it and that the grievor has been discharged contrary to the agreement, the evidentiary onus shifts to the employer to explain the discharge. In the instant case, the parties eventually agreed that the applicant would present its case first, without prejudice to the Board's ruling on the question of onus. The Board confirms, therefore, that the legal burden rests on the applicant throughout and notes, despite the allegation of discharge that the applicant has agreed to adduce evidence first.

6. The respondent maintained that the Service Collective Agreement between the Union Maintenance and Service Contractors Members of the Ontario Refrigeration & Air Conditioning Contractors Association ("ORAC") and Local 787 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the union"), which was relied on in the application, has no applicability to the grievor. However, the respondent in its own reply stated that the Service Agreement applied to all work except ICI work, pursuant to Article of the Service Agreement. The grievor is a mechanic to whom the Service Agreement appears to apply. The grievor does not perform work for the purposes of this application in the industrial, commercial and institutional sector. The grievor's case was based both on the Service Agreement and on the Construction Collective Agreement between ORAC and Local 787. The relevant provisions of both agreements are the same and therefore, even if we were to find that the Service Agreement does not apply to the facts of this case, the grievor still has available the Construction Agreement upon which to base his grievance.

7. With respect to the issue of notice, the respondent argued that the implications of this case affected all potential employees of the employer and, indeed, all mechanics in the field, since if the applicant were successful, potential employees might find that they would not be hired because the company was forced to recall other employees who had been previously laid off. The respondent argued that the notice which it posted on its site was insufficient because it did not inform all mechanics in the field of the hearing. In Re Bradley et al and Ottawa Professional Fire Fighters Association et al (1967), 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376, the Ontario Court of Appeal stated the requirements of notice in circumstances where "two employees or two groups of employees covered by the same collective agreement compete for benefits thereunder which are accorded by the employer to one or to one group only and the disappointed employee or group invoke the grievance machinery to seek redress and their case is taken to arbitration by their bargaining agent". In such cases, "it is reversible error on certiorari for the arbitrator to make an award in their favour which strips the other employee or group of the benefits in question if the latter have not been given timely notice that the benefits conferred upon them by the employer would be brought directly into question at the arbitration hearing and might be lost as a result thereof'. In that case, the arbitrator interpreted a specific provision of the collective agreement and subsequently directed that five promotions which had been made by the fire chief be revoked. Those persons who had been promoted and would be demoted by the direction of the arbitrator had not been given notice. In our view, the facts of the instant case do not come within the Bradley facts. There was no direct competition between the present incumbent and the applicant for the job of mechanic. Furthermore, the Court of Appeal made it clear that if the arbitrator had simply interpreted the relevant article and had adjourned in order to determine the effect of that interpretation on the promotions already made, the notice requirements which had already been made would have been sufficient. The requirements of notice as set out in Bradley, and as applied to the situation described in Bradley, are that "it should be in writing indicating the issue or issues to be arbitrated as involving a possible diminution of the collective agreement benefits being enjoyed by the persons entitled to the notice; and it should advise of the date, time and place of hearing, of the right to be represented by counsel or otherwise, and should be served personally or by registered mail sufficiently in advance of the date fixed for the hearing to give the notified persons a reasonable opportunity to prepare their submissions if they decide to appear". In the instant case, the employer posted notice of the hearing, including the Form 104, Referral of Grievance to Arbitration under section 124, which included a statement of the grievance. Again, however, it is our view that the facts in this case do not fall within the facts set out in Bradley and therefore the fact that notice was not delivered personally or served personally on any particular employee or potential employee does not result in inadequate notice. In any case, it would be open to us to serve a particular individual with notice of our award should be find that Mr. Sumka has been wrongfully dismissed and that he should be reinstated: Re McMaster University and Service Employees International Union, Local 532 (1975), 1975 CanLII 2170 (ON LA), 10 L.A.C. (2d) 130. We were informed that the person currently performing the mechanic's job at the respondent's site was aware of the hearing. Furthermore, the applicant has withdrawn his request for reinstatement, which he originally requested in his reference. In any case, even if we were to order reinstatement, such an order would not require the employer to replace a current employee with the applicant. We are not concerned about the way in which the respondent structures his work force as long as it is not in contravention of the Act. It is our view, therefore, that the notice posted was sufficient.

8. The question of Sumka's status for the purpose of this hearing is answered by Section 1(2) of the Labour Relations Act which applies to applications under section 124 of the Act. It reads:

For the purposes of this Act, no persons shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as the result of a lock-out or strike or by reason only of his being dismissed by his employer contrary to this Act or to a collective agreement.

In addition, the question of whether Sumka is an employee cannot be determined independently of the facts in the reference before us, that is as a preliminary matter. The respondent's position means that no one who believed he or she had been dismissed wrongfully or, indeed, laid off wrongfully, could refer a grievance to the Labour Relations Board. The respondent's objection would require us to decide the merits of the case on a preliminary objection. We are not prepared to do that and therefore are not prepared to find at this stage that the grievor is not an employee and therefore without status to bring the application.

9. The respondent argues that the Construction Collective Agreement does not give recall rights to the union; there is therefore no grievance properly before the Board since the grievance is premised on the right to recall. The applicant bases its case on the allegation that the respondent has contravened Article 5.06 of the Collective Agreement, which protects against dismissal without proper cause, and on section 5.01(7) which requires the employer to exercise its rights fairly and reasonably. The applicant says that the respondent has acted in such a way towards the grievor that the grievor had an expectation of certain treatment; the history of the respondent's relationship with the grievor has given the grievor reasonable expectation of recall. Effectively, the respondent's position is that even if the allegations made by the applicant were true, there could be no finding by this Board that the respondent had contravened the collective agreement. This Board has the power to determine its own procedure, pursuant to section 102(13) of the Act. Accordingly, in our view, the Board may establish its own standards establishing when it will refuse to hear a case on the merits. Without suggesting that these provide the only test, we consider the principles recently set out by the Supreme Court of Canada in Operation Dismantle et al v. Her Majesty the Queen et al, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 relevant to the circumstances under which this Board should dismiss an application on a preliminary objection. In that case, the appellants sought a declaration that the testing of cruise missiles in Canada violated section 7 of the Canadian Charter of Rights and Freedoms. They also sought an injunction and damages. Mr. Justice Dickson (as he then was), Estey, McIntyre, Chouinard and Lamer, JJ. concurring, held that the appellants' statement of claim should be struck out and the appeal dismissed. His Lordship stated:

If the appellants are to be entitled to proceed to trial, the statement of claim must disclose facts, which, if taken as true, would show that the action of the Canadian government could cause an infringement of their rights under s. 7 of the Charter. I have concluded that the causal link between the actions of the Canadian government, and the alleged violation of appellants' rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action.

Mr. Justice Dickson adopted the relevant principles of determining when a statement of claim may be struck out, as articulated by Wilson J. although he did not adopt all of Madame Justice Wilson's reasoning. Wilson, J. stated that "[t]he facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable course of action, i.e. a cause of action 'with some chance of success' ... [reference omitted] or, ...[reference omitted] is it 'plain and obvious that the action cannot succeed?'. In our view, the facts as pleaded, which are based upon a lengthy history of layoff and recall of the grievor, may ground a grievance "with some chance of success". In our view, it is not "plain and obvious" that the grievance cannot succeed. Therefore, we are not prepared to dismiss the application at this stage of the proceedings.

10. The respondent further objected on the basis of "timeliness" of the grievance. The Construction Collective Agreement states that an employee who believes his rights under the agreement have been violated must inform the employer and the union within 5 days of the violation and the complaint will be treated as a grievance. Counsel for the respondent referred us to Article 29:01 which states that where "a grievance concerning the interpretation, application, administration or alleged violation of this Agreement and including any question as to whether the matter is arbitrable which is being properly covered through all the steps of the Grievance Procedure" and which has not been settled will be referred to a board of arbitration at the written request of either of the parties" which he argued is a "forfeiture" provision. In any case, it seems clear that the 5-day time requirement is mandatory: Re International Union, United Automobile, Aerospace & Agricultural Implement Workers of America et al and Massey-Ferguson Industries Ltd. et al (1979), 230.R. (2d) 56 (Div.Ct.). Thus the grievance is properly before us only if this is a proper case to extend the time limits or if it can be shown that the respondent and the union waived the limits. The applicant's counsel argued that the respondent had waived the limits, since he claimed that the parties have been discussing this issue "on and off" and that the respondent did not raise an objection when notified of the grievance through the applicant's letter to the Board dated February 25, 1986 applying for a referral of the grievance to the Board. The respondent's counsel claims that the February 25,1986 date is the first that the respondent has heard of the grievance. We are not prepared to find that the respondent waived the time limit at this stage of the proceedings. However, we note that in Lummus Company Canada Limited and The Ontario Erectors Association, [1976] OLRB Rep. Jan. 980, the Board held that section 124 permits the applicant to refer a grievance to the Board regardless of any provisions in the collective agreement: "the plain intent of section [124] of the Act is to establish a dispute settling mechanism separate and apart from any grievance and arbitration procedure provided under the terms of the subsisting collective agreement ...." On this view, section 44(6) of the Act, which permits the Board to "extend the time for the taking of any step in the grievance procedure under a collective agreement" if it is satisfied that "there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension", and which is incorporated into section 124 of the Act, relates to the timeliness of the filing of a reference after delivery to the other party "or at any stage of the grievance procedure if pursued under the terms of the agreement". Here the union has chosen the alternate statutory route and there has been no delay between delivery to the respondent and filing of the grievance. This approach to the effect of section 124 was approved by the Ontario Divisional Court in The Ontario Erectors Association and Sheafer-Townsend Limited v. International Union of Operating Engineers, Local 793, (unreported), dated February 19, 1980. However, even if section 44(6) were intended to refer only to the terms of the collective agreement and the applicant is required to conform to those terms (that is that section 124 provides a supplementary, not alternative, method of grievance resolution), upon consideration of all the material before us, including submissions of the parties, and in particular taking into account the nature of the case, we are satisfied that there are reasonable grounds for extending the time period in section 27:01 of the collective agreement and that this is a proper case for so doing. In any case, since in our view the timing of the violation, if a violation has occurred, is best determined on the evidence adduced on the merits of the case, since the applicant's theory of the case is that Sumka has been subject to dismissal by not being recalled as he had previously been according to the employer's past practice, we would be most reluctant to dismiss the case on preliminary objection on the basis of delay. For all the above reasons, we are not prepared to dismiss the matter at this stage of the proceedings.

11. After the Board announced its rulings on the preliminary matters, counsel for the respondent objected that with respect to his preliminary objections relating to notice, the status of Sumka and the 5-day limitation period, he had not been able to make representations of fact. He submitted that the Board could not properly make determinations in these matters without such facts. The Board is of the view that we had sufficient facts before us, derived from submissions of counsel for both parties, to make the appropriate determinations. In addition, it must be noted that counsel for the respondent raised all preliminary matters and at no time prior to the Board rulings, did he indicate that he wished to raise further facts or to introduce evidence on any of these matters. Had he done so, the Board would have obviously permitted whatever evidence or further submissions on any of the matters were necessary in order to ensure a full hearing on any of them. In the event, it is our view that both counsel were permitted ample opportunity to make submissions and we note that counsel for the respondent did not articulate any concern about additional submissions until after we had made our rulings.

12. Accordingly, this matter will proceed on its merits and is referred to the Registrar for scheduling continuation of the hearing on July 2nd and 3rd, 1986, upon agreement of the parties, before this same panel.