The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) and its Local 27 v. Sparton of Canada Limited, 1986 CanLII 1547

The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) and its Local 27 v. Sparton of Canada Limited

2342-84-U The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) and its Local 27, Complainant, v. Sparton of Canada Limited, Respondent

BEFORE: M. O. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and K. Rogers.

DECISION OF THE BOARD; January 10, 1986

1This is a section 89 complaint in which the Board, on September 17, 1985, issued a decision which concluded as follows:

18. The Board accordingly finds that the respondent has acted in violation of section 15 of the Labour Relations Act in purporting to modify its offer for a collective agreement after permitting the complainant to accept it. The respondent is thus directed by the Board to enter into a collective agreement with the complainant, effective, as in the past, from the date of the membership's acceptance (October 3, 1984), on the basis of the company's oral offer of "two years - no change". As this decision has clarified, that offer includes an uninterrupted Christmas shutdown of eight paid holidays.

19. That will accordingly be the form of the Christmas shutdown in 1985-86, the second year of the contract. As the 1984-85 year has already passed, however, and a Christmas shutdown of only five paid holidays observed, we direct the respondent to provide each of the employees in the bargaining unit who was also employed as of December 27, 1984, with 3 additional working-days off with pay at a time to be scheduled by the respondent, but not later than December 23, 1985.

20. In light of our conclusion that the respondent acted honestly, although erroneously, in this matter, we are not of the view that any additional form of relief requested by the complainant, including what has been termed a Swan Tours form of damages, are appropriate.

21. The Board will remain seized of this matter in the event any dispute exists over the implementation of the order which the Board has made.

2Unknown to the Board, employees in the bargaining unit had by September 17th already been placed on notice of indefinite lay-off, to be effective October 18, 1985. Further, all but 3 of the employees in the bargaining unit were apparently placed on temporary lay-off without notice for 3 days, being September 25, 26 and 27. The complainant received the decision of the Board in this matter partway through this 3-day lay-off, and it appears the respondent employer may have done so also. When the employees returned to work, they were made aware of the respondent's intentions concerning the Board's order in the following

Notice:

We have received a decision of the Ontario Labour Relations Board with regard to the Christmas holidays for 1984.

To comply with the decision, we have chosen to pay all eligible employees for the time away from work on September 25th, 26th and 27th.

Arrangements will be made in the near future to allow time-off with pay for those employees who were at work on the above stated days.

The complainant takes issue with the respondent's efforts to, in the complainant's words, "characterize a previous lay-off retroactively as a three day paid holiday", and argues that the Board's order has not been complied with.

3The Board, having remained seized with the question of implementation, and having reviewed the submissions of the parties, is of the view that the respondent's actions constitute compliance with the order of September 17, 1985. While events did not unfold exactly as the Board itself had anticipated, the fact is that the Board in its decision acknowledged that, with respect to 1984, the clock could not be turned back, and, in the circumstances of this case, awarded no compensation for the loss of a continuous shutdown other than an award of 3 additional days off with pay. It was left to the respondent to designate the dates which would be utilized to meet this requirement, so long as those dates occurred no later than December 23, 1985. That has been done. The respondent was to bear the burden of, and the various employees were to receive the benefit of, 3 days that the employees would not be required to work, but for which they would receive full pay. That has also been done. In fact, we note that it has been done in the only way it could have been if employees, prior to dates being designated, were to sever from the company, or be on lay-off through December 23, 1985. It is our decision, therefore, that the respondent's actions do reasonably meet the minimum requirements for compensation set out in the Board's order regarding the loss of 3 paid holidays for 1984.

4The final issue is whether 2 employees who had in fact left the employ of the company prior to the date of the Board's decision of September 17, 1985, are entitled to the benefit of the Board's order. The material portion of the order, again, reads:

we direct the respondent to provide each of the employees in the bargaining unit who was also employed as of December 27, 1984, with 3 additional working-days off with pay at a time to be scheduled by the respondent, but not later than December 23, 1985.

The complainant argues that the Board would not have intended that 2 employees in the bargaining unit in December 1984, at the time when the respondent wrongfully deprived them of 3 additional days of holiday, would not be entitled to recover their share of damages therefor. In the alternative, the complainant requests the Board to exercise its power under section 106(1) of the Labour Relations Act to vary its original decision to make it clear that these 2 employees are so entitled. The respondent argues that it has correctly interpreted and implemented the Board's award, and that the Board is now functus.

5Section 106(1) provides:

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 nil 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.

It is doubtful whether the doctrine of functus officio can apply to the Board at all, in light of the language of section 106(1). However, the power to vary a decision must, in the interest of finality, be exercised only in cases where the circumstances clearly justify it. The respondent has correctly interpreted the Board's award as it was written, and it is our view that the respondent is entitled to an opportunity to reply, if it wishes, to the question of reconsideration raised for the first time in Mr. MacLean's final letter of November 19, 1985. The Board accordingly grants the respondent to January 24, 1986 to do so.