Fitzhenry and Whiteside Limited v. Toronto Typographical Union, Local 91, 1987 CanLII 3244

Fitzhenry and Whiteside Limited v. Toronto Typographical Union, Local 91

[1987] OLRB Rep. April 504

2804-86-U; 2805-86-U Fitzhenry and Whiteside Limited, Complainant/Applicant v. Toronto Typographical Union, Local 91 and Nelson Roland, Respondents

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. O. Shamanski and J. Sarra.

APPEARANCES: H. M. Rossman and Robert Fitzhenry for the complainant/applicant; James Hayes, Douglas Grey, Joe Bigeau and Nelson Roland for the respondents.

DECISION OF THE BOARD; April 9, 1987

I

1This is a complaint under section 89 of the Labour Relations Act, which was heard together with an application for consent to prosecute the named respondents in Provincial Court (Criminal Division). A hearing in this matter was held in Toronto on March 5, 1987. At the conclusion of argument, the Board ruled orally, that the application and complaint should both be dismissed. The Board indicated that it would record its rulings, in writing, and issue reasons therefor should either of the parties so request. By letter dated March 19, 1987, the respondents requested that "the decision which was orally delivered on March 5 be reduced to writing along with any elaboration as to reasons which seem [sic] appropriate".

2For ease of reference the applicant/complainant may sometimes be referred to as "the employer", and the union respondent may be referred to simply as "the union".

II - Consolidation with other matters

3At the opening of the hearing on March 5, 1987, the employer submitted that its complaint/application should be adjourned and heard later, together with two earlier unfair labour practice complaints which had been filed by the union. Those complaints concerned alleged misconduct in which the employer itself had been engaged. One of these complaints was filed in August 1986. The second one was filed in December 1986. Neither of them had been scheduled for hearing. (They were later settled).

4After hearing the submissions of the parties, the Board ruled as follows:

"Section 102(13) of the Act gives the Board the power to determine its own practice and procedure. This power is spelled out, more particularly, in Rule 81, of the Board's Rules of Procedure, which reads:

"Where the Board deems it necessary, it may at any time direct that a proceeding before the Board be consolidated with any other proceeding before the Board and it may issue such directions in respect of the conduct of the consolidated proceeding as it considers advisable."

We have considered the allegations contained in the most recent complaint filed by the employer and are satisfied that the events complained of are sufficiently narrow and discrete that there is no reason for this matter to be consolidated with those other proceedings, filed earlier, and currently pending before the Board. Moreover, in the present application/complaint the employer is making allegations of personal illegal conduct against counsel appearing on behalf of the union in the two other proceedings. Yet the employer now asks that all three matters be consolidated. The employer submits that, in its opinion, there is no reason why Mr. Roland, a lawyer, could not act as counsel in the two earlier matters, while at the same time being a named respondent in the most recent proceedings brought by the employer, which the employer seeks to have consolidated.

We do not agree. We do not think that the circumstances here warrant a consolidation; and it is difficult to see how counsel could continue to act in a matter in which he was a named respondent whose conduct was alleged to warrant prosecution. This is an additional reason why, in all the circumstances, the proceedings should not be consolidated. Nor is it necessary to postpone or adjourn this case so that they can be heard sequentially. The matters are before the Board, the parties are here, and we are prepared to deal with them today."

III - The Application/Complaint

5It is appropriate to comment briefly on the statutory framework within which the parties' rights must be determined.

6Sections 89(1) and 89(4) of the Act give the Board the discretion to inquire into any alleged breach of the Labour Relations Act. Section 89(4) also gives the Board a broad remedial authority. However, section 89 is not itself an "offence section" capable of being contravened. An unfair labour practice complaint must be based upon an alleged breach of some other section of the Act.

7Sections 96 - 101 preserve the possibility of quasi-criminal sanctions where, in the opinion of the Board, they may be necessary to bolster the remedies available under section 89, or ensure compliance with the policy objectives of the Act. A consent to prosecute and section 89 complaint can be complementary, but, in recent years, the Board has not been disposed to project parties into the Criminal Courts for the imposition of a "penalty", where the "remedies" available under section 89 were sufficient to accomplish the statutory purpose. Prosecution remains a residual option reserved for circumstances which clearly warrant it.

8In the instant case, the particulars of alleged misconduct are the same for both the unfair labour practice complaint and the consent to prosecute. They read as follows:

PARTICULARS OF COMPLAINT

1. On November 25th, 1986, the Respondent Union filed an application under section 45 of the Act for the appointment of an arbitrator to consider three grievances

2. The said grievances concerned letters sent to certain employees who had been late for work (2 grievances) and an issue of work assignment.

3. The Minister appointed J. W. Kilgour of Oakville, Ontario to be the arbitrator in the above-stated matters.

4. The arbitrator, Mr. Kilgour, scheduled a hearing to take place on December 19th, 1986 at Richmond Hill, Ontario.

5. At the commencement of the said hearing, the Respondent Union, through its counsel, the Respondent Roland, requested an adjournment claiming:

a) a subpeonaed [sic] witness, one Joan McCabe, may have been intimidated by the Complainant;

b) other witnesses could not be subpeonaed [sic] in time to attend; and

c) that certain applications under section 89 of the Act had been filed the day before by the Respondent Union with the OLRB (OLRB File No. 2643-86-U) which should be disposed of prior to the arbitration proceeding.

6. At all times, the Complainant was prepared to proceed with the arbitration hearing and so advised the arbitrator.

7. The arbitrator acceded to the Respondent Union's request and, on January 2nd, 1987, gave written reasons. The arbitrator submitted an account in the amount of $1,002.88 of which the complainant's share is $501.44.

8. It came to the Complainant's attention that the employee Joan McCabe wished to correct statements made to the arbitrator by the Respondent Roland but the Respondent Roland refused to allow her to speak.

9. It has also come to the Complainant's attention that no effort had been made by the Respondent Union or the Respondent Roland to subpeona [sicl the other two potential witnesses although they were available at all times.

10. It was the submission of the Complainant at the arbitration hearing that the arbitrator should have embarked upon an examination of the witness Joan McCabe to test the concerns of the Respondents.

11. The Complainant submits that the Respondent Union and the Respondent Roland misled the arbitrator as to the true state of facts with the sole intent of harassing the Complainant and putting the Complainant to needless financial expense.

12. Furthermore, the Complainant submits that the Respondent Union and Respondent Roland misled the arbitrator as to the nature of the section 89 application made the day prior to the arbitration hearing. The contents of the complaint contained in OLRB File No. 2643-86-U have no bearing to the subject matter of the grievances which was before the arbitrator. The Respondent Roland, being a lawyer who practices before the Ontario Labour Relations Board, ought to have been aware that the Board itself does not have jurisdiction to entertain grievances (section 91(14) of the Act) and that arbitration was the proper forum for those matters.

13. The Complainant further submits that the Respondent Union and the Respondent Roland have abused the processes of the Labour Relations Act.

9The thrust of the complaint is that the employer was put to some expense when an arbitrator granted an adjournment, without condition, (and despite the employers' opposition,) based upon the submissions made to him. Insofar as Ms. McCabe is concerned, paragraph 10 is really a criticism of the arbitrator for not enquiring further into the union's assertions concerning her. With respect to the union's efforts to secure the attendance of witnesses, or the reference to the complaints filed with the Ontario Labour Relations Board, we can only assume that the arbitrator was satisfied by what he heard, and if the employer wanted formal proof of the assertions made or further elaboration it could have and should have made such demand. The reference in paragraph 12 of the complaint is mystifying: section 91 of the Act deals with disputes between unions concerning the assignment of work. It has nothing to do with the Board's jurisdiction to entertain a grievance alleging a breach of a collective agreement; moreover, the Board does have jurisdiction to enquire into any breach of the Act even though the conduct complained of may also be a breach of the agreement.

10The consent to prosecute application does not allege that any specific section of the Labour Relations Act has been violated. It merely complains that the respondents have "misled" an arbitrator appointed under section 45 of the Labour Relations Act to deal with a question concerning the interpretation, administration or alleged violation of a collective agreement between the employer and the respondent union. The section 89 complaint relies upon section 80(2) of the Act, which reads as follows:

No trade union, council of trade unions or persons acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

No other section of the Act is referred to or relied upon.

11We should note that Ms. Joan McCabe, the individual referred to in the employer's application/complaint, does not, herself, make any allegation against the trade union. She does not assert that she was discriminated against, intimidated, or coerced in any way. She has not complained to the Board that Mr. Roland misrepresented her position. She is not a party to these proceedings. Although present in the hearing room on March 5, 1987, there is no indication or assertion that Ms. McCabe accepts or supports the employer's characterization of the situation described in its application/complaint.

12The employer conceded that the main reason for filing the instant application/complaint was that the union had filed two earlier unfair labour practice complaints. The employer's representative maintained that "what is good for the goose is good for the gander" ... "the Act is there for employers as well as trade unions". If unions can file complaints which may or may not be justified, employers, in response, can file complaints too. This application/complaint was in the nature a "riposte".

13The respondents maintained that the application and complaint were frivolous, vexatious, and patently without foundation. The respondents submitted that they should both be dismissed.

14After hearing argument, the Board agreed with the respondents' characterization of these proceedings. We did not think that the matters referred to by the employer in its pleadings constitute a breach of the Labour Relations Act, and certainly there was no breach of section 80(2), the only section pleaded. Indeed, the only question in this regard concerns the position of Ms. McCabe who does not, herself, allege any impropriety on the part of the union; and, we doubt whether the employer is even entitled to assert such claim (see Quebec Labour Relations Board v. Cimon Ltee. (1971), 1971 CanLII 143 (SCC), 21 D.L.R. (3d) 506; Cunningham Drug Stores Ltd. v. B. C. Labour Relations Board 1972 CanLII 143 (SCC), [1973] S.C.R. 256; 31 D.L.R. (3d) 459; Re Canada Labour Relations Board and Transair Ltd. (1967), 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421; Federated Building Maintenance Co., [1979] OLRB Rep. Oct. 974; Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331; and Bennett Paving and Materials Limited, [1980] OLRB Rep. Nov. 1579). After reviewing the pleadings, and hearing the parties' submissions, the Board concluded that the application/complaint was a rather transparent attempt to misuse the Board's process to gain some tactical advantage in respect of other unfair labour practice complaints currently pending, or in the employer's general relationship with the union. Its purpose was to embarrass Mr. Roland, and embroil the union in litigation in which it would necessarily have to retain and instruct other counsel - as it did for the proceeding before the Board. In short, the objective was to harass the union and generate needless expense. In the circumstances the Board made the following oral ruling, which is hereby confirmed:

"We are satisfied that this complaint and application are without foundation and do not disclose a prima facie case for the relief requested. Indeed we would go further, and find that these proceedings are frivolous and vexatious, and undertaken in large measure to impose inconvenience and expense upon the trade union, and to be a "bargaining chip" in respect of other matters currently pending before the Board. As counsel [for the employer] put it, "what's good for the goose is good for the gander". The filing of this application/complaint was purely tactical. But that is not a basis for filing a complaint, which necessarily triggers the private and public costs associated with an OLRB proceeding. For that reason alone, we would not exercise our discretion to inquire into the section 89 complaint or grant consent to institute prosecution. What we have here is an abuse of process, and were it in the power of the Board to award costs we would certainly do so. However, we do not think that we can award costs, but we can certainly dismiss both the application and complaint, and hereby do so."

15The above-mentioned decision is hereby recorded, in writing, at the request of the respondents.