[1987] OLRB Rep. July 986
1296-82-U; 0195-83-U Luciano D'Alessandro and Donato Marinaro, Complainants v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents
BEFORE: Robert D. Howe, Vice-Chair, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: John Bracewell for Luciano D'Alessandro; Ed J. Brogden for Donato Marinaro; A. M. Minsky and R. Leone for the respondents.
DECISION OF THE BOARD; July 23, 1987
1In a decision dated December 11, 1985 in respect of these consolidated complaints under section 89 of the Labour Relations Act, the Board found that the respondent Labourers' International Union of North America, Local 1089 (also referred to in this decision as the "Union" and "Local 1089"), contravened section 69 of the Act in respect of three of the six referrals impugned by the complainant Luciano D'Alessandro, and in respect of 23 of the numerous referrals impugned by the complainant Donato Marinaro, and ordered the Union to compensate the complainants for their respective wage and benefit losses. In paragraph 65 of that decision (which is reported in [1985] OLRB Rep. Dec. 1708), we wrote as follows regarding the complainants' request for costs:
- Counsel for the complainants has asked the Board to award costs to his clients. That request was opposed by respondents' counsel, who noted that his clients were not asking for costs in the event that the complaint was dismissed. In rejecting a similar request by a complainant in Silknit Limited, [1983] OLRB Rep. Nov. 1913, the Board wrote, in part, as follows:
- We are not entirely unsympathetic to the complainant's concern, for we recognize that a party may well have to expend substantial sums in connection with proceedings under the Labour Relations Act. Moreover, there is something to be said for the argument that if one can obtain costs upon the vindication of private law rights, the measure of compensation for the successful assertion of public rights guaranteed by statute should be no less generous. However, there are a number of difficulties with this superficially attractive proposition. In the first place, costs are not dealt with explicitly in the statute~ with the result that it is arguable that the Board has no jurisdiction to award costs except as a part of the compensation award flowing from a finding of a statutory violation. Thus, there may be no authority to compensate a party respondent which has successfully resisted or defended against a claim. And how should one deal with a situation in which, from a practical or legal stand point, success is divided? The law of costs in the civil process is both technical and complex, and there are good policy reasons why it should not be readily imported into a law of collective bargaining which has survived without it for forty years and which the laymen who operate within the system and regularly appear before the Board have some difficulty understanding as it is. Finally, while it is tempting to suggest that flagrant or egregious violations of the statute should result in a "make whole" remedy in which the aggrieved party is compensated for the costs of the proceedings, it is much less clear how one would distinguish an "ordinary" violation of the statute from a "flagrant" one or a frivolous assertion from one which is arguable but ultimately rejected. It is one thing to suggest that a serious breach of the Labour Relations Act may trigger special remedial considerations or call for ingenuity in fashioning the appropriate remedy; it is quite another to suggest that an "ordinary" breach of the Act yields one level of compensation while a "serious" one warrants a higher level of compensation. Such an approach would begin to look "penal" rather than "compensatory" (and see sections 96 - 99 of the Act which are expressly penal in character).
See also John Glykis, [1985] OLRB Rep. March 420; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1775; and Radio Shack, [19791 OLRB Rep. Dec. 1220, at page 1271. In addition to the compelling policy reasons set forth in those decisions for not awarding costs in respect of complaints under section 89 of the Act, the complainants' mixed success in the present case also militates against an award of costs.
2Since the parties were unable to reach agreement concerning quantification of the Board's order, a further hearing was held for the purpose of hearing the evidence and submissions of the parties regarding that matter. In a decision dated July 30, 1986 (reported in [1986] OLRB Rep. Aug. 1058), we rejected Mr. Marinaro's claim for over $70,000 in damages, and awarded him $17,899.03, plus interest. A majority of the panel also rejected Mr. D'Alessandro's claim for over $45,000 in damages, and awarded him $6,005.98 plus interest. The respondent was also ordered to make on behalf of Messrs. Marinaro and D'Alessandro all payments to the welfare, dental, and pension funds which would have been directed to those funds, in amounts corresponding to further earnings of $17,899.03 and $6,005.98, respectively. (In a decision dated August 27, 1986, Board Member Rutherford concurred with the majority decision dated July 30, 1986 insofar as it pertained to Mr. Marinaro, but dissented from the majority decision to award compensation to Mr. D'Alessandro.)
3In an unreported decision dated November 19, 1986, the Board dismissed an application by the complainants for reconsideration of various aspects of the July 30, 1986 decision. With respect to the complainants' request for reconsideration of the ruling (contained in the aforementioned decision dated December 11, 1985) by which we declined to award costs to the complainants in these proceedings, we wrote as follows:
- Having regard to all of the circumstances, we are prepared, however, to afford the parties an opportunity to present evidence and further argument concerning costs. Accordingly, the Registrar is hereby directed to list these consolidated complaints for continuation of hearing in Sarnia for the purpose of hearing the evidence and representations of the parties with respect to the issue of whether or not costs should be awarded to the complainants in these proceedings.
4Pursuant to that direction, a further hearing was held in Sarnia on July 2, 1987. At that hearing, counsel for the respondents raised a preliminary objection to the Board's jurisdiction to award costs, and further submitted, in the alternative, that the complainants have not made out a prima facie case for an order for costs in their favour. Having carefully considered all of the submissions of the parties regarding those matters, we have reached the following conclusions.
5The complainants seek to obtain costs from the respondent on several bases. They contend that various resolutions passed by the membership and Executive of Local 1089 obligate the Union to pay the complainants' costs. They further allege that Local 1089 has discriminated against them, and dealt with them in bad faith and in an arbitrary manner, by paying legal fees incurred by the respondent Rocco D'Andrea and his successor, Robert Leone, but declining to pay theirs. Indeed, Mr. Bracewell, who represented Mr. D'Alessandro at the July 2, 1987 hearing, sought to file at that hearing a new complaint under section 89 of the Act alleging that the respondents contravened section 68 of the Act by refusing to pay Mr. D'Alessandro's legal expenses pursuant to two of those resolutions. However, as submitted by counsel for the respondents, the interpretation and enforcement of such resolutions are not within the Board's jurisdiction under section 68 of the Act. It is well established in the Board's jurisprudence that for the Board to find a breach of section 68, the union's impugned actions must involve the representation of a bargaining unit employee in relation to his or her employer. See, for example, Angelo Moro, [1983] OLRB Rep. Aug. 1354, at paragraph 3, in which the Board wrote, in part, as follows:
The Board has consistently ruled in past decisions that the duty of fair representation in section 68 is concerned only with the representation by a trade union of an employee in relation to his or her employer.
This Board has only such jurisdiction as has been conferred upon it by statute. It has no authority under section 68 of the Labour Relations Act (or any other statutory provision) to undertake a general watchdog role in respect of internal union processes. Nor does the Board have any general authority to supervise or direct the expenditure of union funds; that is the responsibility of the union membership, either directly or through their elected representatives. Moreover, the Board observed in Arthur Joseph Roberts, [1974] OLRB Rep. March 169, at paragraph 8:
the propriety of a trade union's behaviour vis-a-vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the Courts are his assurance that these rules will be implemented fairly and impartially.
See also Ronald Lewszoniuk, [1984] OLRB Rep. Jan. 48; Sylvia Colalillo, [1982] OLRB Rep. July 1066; and Frank Manoni, [1981] OLRB Rep. Dec. 1775. Thus, the allegations contained in Mr. D'Alessandro's new complaint do not, in our opinion, make out a prima facie case of a breach of the Labour Relations Act, and should be dismissed without a hearing pursuant to section 71(1) of the Board's Rules of Procedure.
6Counsel for the complainants also contended that the existence of those motions and the complainants' (alleged) reliance on them should prompt the Board to award costs to the complainants. However, in our view, neither those motions nor any of the other circumstances relied upon by counsel for the complainants warrant a departure from the Board's well established policy of declining to award costs. As noted by the Board in Gerald Lecuyer, [1987] OLRB Rep. Apr. 529, at paragraph 32, "[t]his Board has repeatedly said that if it does have the power to award costs to a successful complainant, it would be inappropriate to exercise that power where there is no corresponding power to award costs against an unsuccessful complainant: see, for example, Silknit Limited, [1983] OLRB Rep. Nov. 1913 at paragraph 8." See also Fitzhenry and Whiteside Limited, [1987] OLRB Rep. Apr. 504, at paragraph 14. In this regard, we find no merit in Mr. Bracewell's argument that section 80(4) of the Judicature Act, R.S.O. 1980, c. 223 (which was in force at the time these complaints were filed), gives the Board jurisdiction to award costs to a successful complainant and against an unsuccessful complainant. It is clear from the provisions of the Judicature Act, read as a whole, that it was not intended to apply to the Board, and that we are not "judicial officers" within the meaning of section 80(4), which provides that "[c]osts of proceedings before judicial officers, unless otherwise disposed of, are in their discretion, subject to appeal." (It is common ground among the parties that nothing in the Courts of Justice Act, S.O. 1984, c. 11, as amended, which superseded the Judicature Act on January 1, 1985, gives the Board any such jurisdiction.)
7In Academy of Medicine, [1977] OLRB Rep. Dec. 783, at paragraph 48, the Board, as part of a "make whole order", directed the employer to reimburse the union involved in those proceedings for "all reasonable organizational, bargaining, legal and other expenses associated with its efforts to acquire and pursue its statutory rights", including "the costs of proceedings before the Board". In that case, the employer had closed its Call Answering Service Division in order to "rid itself, once and for all, of the union and its supporters" (see paragraphs 29 to 34). However, in Radio Shack, [1979] OLRB Rep. Dec. 1220 (in part (d)(i) of paragraph 125), the Board declined to award legal costs in the context of proceedings involving a pervasive pattern of unfair labour practices, including violations of what are now sections 15, 64, 66, 67, and 70 of the Act. In doing so the Board wrote:
We have decided against awarding the Complainant its legal costs in this matter. The Board is hesitant to pursue this line of compensation because of the possibility that the denial of legal costs to those parties who successfully defend against complaints may be misunderstood and perceived as unfair. This policy may be reviewed by the Board from time to time.
since then, the Board has been asked on a number of occasions to review and alter that policy (see, for example, Angelo Ritrovato, [19861 OLRB Rep. Oct. 1401; Jean Liebman, [1986] OLRB Rep. June 753; Gerald Lecuyer, supra; John Glykis, [1985] OLRB Rep. March 420; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755; and Grey-Owen Sound Health Unit, [1980] OLRB Rep. Feb. 223. On each such occasion, the Board has declined to do so on the basis of labour relations policy considerations, including those articulated in the passage quoted above from Silknit Limited, [1983] OLRB Rep. Nov. 1913, at paragraph 8. The Silknit case involved a successful complaint by a trade union against an employer. However, similar requests have also been uniformly denied in the context of section 89 complaints in which the Board has found a trade union to have violated section 68 or 69 of the Act: see, for example, Gerald Lecuyer, supra, and Angelo Ritrovato, supra.
8As noted in paragraph 65 of our decision dated December 11, 1985 (as quoted above), the complainants' mixed success in the instant case also militates against an award of costs. Less than half of the numerous referrals impugned by Mr. Marinaro were found to have involved a contravention of the Act, and he was ultimately found to be entitled to less than a third of the damages which he claimed. Mr. D'Alessandro's complaint was also only partially successful; three of the six referrals impugned by Mr. Marinaro were found to have been made in contravention of the Act, and he was awarded only a small fraction of the damages which he was claiming.
9The complainants contend that their costs were escalated by various actions of the respondents. For the purposes of this decision, we are prepared to assume (without deciding) that, as alleged by the complainants, various actions of the respondents, such as requesting adjournments, engaging in settlement discussions involving other complainants, and making various motions before the Board, did escalate the complainants' costs. However, it is clear that various actions of the complainants, through the various counsel who represented them at the pertinent times, also increased the costs of these proceedings for all parties by protracting the hearing of these complaints. For example, on August 9,1984, during the course of the hearing of the complainants' case, the complainants alleged that one of their witnesses had been "jumped" on the Union's out-of-work list in an attempt to intimidate him. That allegation, which the Board ultimately found to be without merit (in an unreported decision dated October 5, 1984), interrupted the hearing of the merits of these complaints, and gave rise to five days of hearing, followed by written argument. The complainants' belated filing of particulars also prolonged the hearing. It was further prolonged by counsel for the complainants' failure to appreciate or respect the proper limits of reply evidence: see, for example, our decision dated February 14, 1985 (reported in [1985] OLRB Rep. Feb. 241). We could multiply examples of the ways in which the hearing of these matters was prolonged by various actions of the parties and their representatives, but consider it unnecessary to do so. It suffices to observe that the protraction of the hearing of this matter is attributable to the complainants as well as to the respondents. In the totality of the circumstances, we are of the view that neither the prolongation of the hearing nor the aforementioned escalation of costs warrants a departure from the Board's normal practice of declining to award costs.
10For the foregoing reasons, the requests by each of the complainants that the Board reconsider its aforementioned decision in respect of costs are hereby dismissed.