[1988] OLRB Rep. June 601
2063-87-U Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Complainant v. M & K Plastic Products Limited, Respondent
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; June 13, 1988
I
- This is a complaint under section 89 of the Labour Relations Act in which it was contended that "the grievor" Tony Bilikian had been discharged contrary to sections 64, 66, 70 and 79 of the Act. Mr. Bilikian's employment was terminated on October 23, 1987. In a decision dated February 29, 1988, the Board determined that Mr. Bilikian had indeed been unlawfully discharged and made the following remedial direction:
"We therefore direct that the grievor be reinstated, forthwith, and fully compensated for all wages and benefits lost. Such compensation shall, of course, be subject to the usual rules respecting mitigation and the provisions of Practice Note 13 respecting interest payable on unpaid wages."
The Board further directed that in order to counter the chilling effect which would necessarily flow from the discharge of a key union organizer during the course of a certification proceeding, the respondent must post a notice in the form more specifically set out in Appendix "A" to that decision in prominent places on its business premises where such notice would most likely come to the attention of bargaining unit employees.
- By letter dated March 22, 1988 counsel for the complainant union and Mr. Bilikian wrote to the Board as follows:
We acknowledge receipt of the decision of the Board dated February 29, 1988 and released on March 2, 1988 in the above matter.
Pursuant to Section 106 of the Act we hereby request that the Board reconsider its decision in that the employer has been improperly named. In its decision the Board has listed "M & K Plastics Limited" as the Respondent. We hereby request that the decision of the Board be reconsidered and varied to indicate that the correct name of the Respondent is "M & K Plastic Products Limited".
Furthermore, in paragraph 40 of its decision the Board directed that the grievor be reinstated, forthwith, and fully compensated with all wages and benefits lost. We wish to advise the Board, as of the date of this letter, that the employer has failed or refused to comply with the Order of the Board. Accordingly, pursuant to Section 89(6) of the Act we hereby request that the Board file in the Office of the Registrar of the Supreme Court a copy of its decision, exclusive of the reasons therefore [sicl.
We trust that the above is satisfactory and should you have any questions concerning any of the foregoing, please do not hesitate to contact us.
Counsel for the respondent was "copied" on that letter, and, in addition, after receipt thereof, the
Registrar of the Labour Relations Board wrote to the respondent's counsel as follows:
March 25, 1988
Winkler, Filion & Wakely
Barristers and Solicitors
390 Bay Street
Toronto, Ontario
M5H2G3
Attention: Mr. M. D. Failes
Dear Mr. Failes:
Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, v. M & K Plastics Limited
I am enclosing herewith a copy of a letter dated March 22, which has been received from the solicitors for the applicant in the above matter, with respect to which I would appreciate receiving your comments if any, in this office on or before April 12, 1988.
very truly yours,
T. A. Inniss
Registrar
TAIIcr
End.
c.c. to:
M & K Plastics Limited
12 Melanie Drive
Brampton, Ontario
L6T 4K9
Attention: Mr. M. Fuchs
The respondent made no reply by its counsel or otherwise.
- On May 18, 1988 counsel for the union and Mr. Bilikian renewed their request that the Board file its determination in court:
On March 22, 1988 we wrote to the Board requesting firstly that the Board reconsider and vary its decision to indicate that the correct name of the Respondent is "M & K Plastic Products Limited" and secondly to request that the Board, pursuant to Section 89(6) of the Act, file its decision in the Office of the Registrar of the Supreme Court of Ontario.
As of the date of this letter we have heard nothing further from the Board with respect to this matter. We note that Section 89(6) requires that the Board once notified of the failure to comply with the terms of a decision of the Board, and after notification in writing, is to "thereupon" file the determination, exclusive of the reasons therefore I sic], with the Registrar of the Supreme Court. It is now some two months since we wrote to the Board with respect to this matter and we would appreciate immediate action by the Board so that all efforts can be made to return the grievor to work.
The letter indicates that, as before, a copy was being delivered to counsel for the respondent. As of the date hereof there has been no response from the respondent to either letter, or the assertions contained in them. The respondent has not contested the fact that it has neither reinstated nor compensated Mr. Bilikian in accordance with the Board's direction.
II
- Section 89(6) of the Labour Relations Act provides:
Where the trade union, council of trade unions, employer, employers' organization, person or employee, has failed to comply with any of the terms of the determination, any trade union, council of trade unions, employer, employers' organization, person or employee, affected by the determination may, after the expiration of fourteen days from the date of the release of the determination or the date provided in the determination for compliance, whichever is later, notify the Board in writing of such failure, and thereupon the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefore, if any, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment or order of that court and is enforceable as such.
- Although [what is now] section 89(6) could be read as requiring the Board to file its determination with the Registrar of the Supreme Court upon merely being "notified" of non-compliance, for a number of years the Board considered it appropriate to require a party requesting that the Order be filed to prove the fact of non-compliance if such was disputed. This practice was consistent with the then current view that practical or labour relations difficulties arising from the Board determination should be addressed, initially, by the Board before seeking the intervention and involvement of the Courts. This procedure received the approval of the Court in Chairtex Manufacturing (1971) 1971 CanLII 669 (ON CA), 3 O.R. 154 where the Court held that the Board did not exceed its jurisdiction by adopting this approach. More recently, however, the Board has introduced a procedure whereby it advises the respondent of the allegation of non-compliance, and gives the respondent an opportunity to take issue with that submission (see for example Apple Bee Shirts Limited, [1983] OLRB Rep. Dec. 1957). Where the respondent either agrees that there has been a failure to comply with the Board's determination or simply does not respond to the allegation of non-compliance, the Board will typically file its determination with the Court pursuant to section 89(6) of the Act, because, in the absence of any response, it will normally be satisfied that there has been a failure to comply. Neither Chairtex nor the terms of the statute require a hearing, and none is really necessary where the fact of non-compliance is not put in issue.
III
In the instant case the Board decision was dated February 29, 1988 and released to the parties over covering letter of the Registrar on March 2, 1988. On March 22nd the complainant advised the Board of the respondent's failure to comply. The respondent was given an opportunity to contest that fact but chose not to do so. A subsequent letter repeating the union's contention also received no response. In the circumstances the Board concludes that the fact of non-compliance is not disputed, and that this is an appropriate situation in which to file its determination with the Registrar of the Supreme Court of Ontario, so that the complainant may seek enforcement. There is however one difficulty which must be addressed.
In its decision the Board did not specifically quantify the amount of compensation payable to the grievor, Mr. Bilikian. The Board indicated at paragraph 40 that such compensation would be subject to the usual rules respecting mitigation and interest payable on unpaid wages; however in accordance with the Board's usual practice it left the matter to the parties to see if they could settle the amount of compensation without the necessity of a formal hearing. In the Board's experience, in the vast majority of cases, once liability has been established, the parties are able to work out between themselves the appropriate measure of compensation without further intervention of the Board with its attendant costs and potential for further souring their collective-bargaining relationship. In this case, though, the Board has not yet quantified the employee's claim - a matter over which it has exclusive jurisdiction - and therefore we do not think that we can, at this stage, file that part of our remedial direction concerning compensation for lost wages. We will therefore cause to be filed all other aspects of our remedial direction and pursuant to sections 89 and 106 of the Act remain seized with respect to the question of compensation. Should the parties not be able to determine compensation (as appears to be the case, at least at this stage) we will schedule a further hearing before the Board to entertain the parties' evidence and representations with respect to that issue.
The final question addressed in counsel's letter is a change of name in the style of cause from "M & K Plastics Limited" to "M & K Plastic Products Limited". The latter form of name appears in the style of cause of the complaint, and the former appears in the respondent's reply. No issue was taken at the hearing about this discrepancy because it was perfectly clear to all concerned that the case involved the grievor's employer which was a manufacturer of plastic products with a plant at 12 Melanie Drive in Brampton, Ontario. In the circumstances the Board sees no reason why it should not accede to the complainant's request to amend the style of cause so that the name of the respondent reads "M & K Plastic Products Limited", and the same is hereby done nunc pro tunc.