[1989] OLRB Rep. July 810
0142-88-U; 2800-87-U; 0049-88-OH Robert McIntyre, Complainant v. United Steelworkers of America, Local 14045, Respondent v. Zalev Brothers Limited, Intervener; Robert McIntyre, Complainant v. United Steelworkers of America, Local 14045, Respondent v. Zalev Brothers Limited, Intervener; Robert McIntyre, Applicant v. Zalev Brothers Limited, Respondent v. United Steelworkers of America, Intervener
BEFORE: S. A. Tacon, Vice-Chair, and Board Members W. A. Correll and R. Montague.
APPEARANCES: Gary McLister and Robert McIntyre for the complainant; Brian Shell and John Spriggs for the respondent trade union; Jeffrey M. Slopen, Maxwell Zalev and Michelle A. Wylupek for the respondent employer.
DECISION OF THE BOARD; July 6, 1989
1In its decision dated April 13, 1989, the Board directed the parties to file written submissions as to whether the parties' partial agreement on facts may be relied on in ruling on the preliminary motions in the section 68 complaints and, should the partial agreement on facts be relied on, to file any written submissions arising therefrom with respect to those preliminary motions. In its decision of May 16, 1989, the partial agreement was set out for the parties' benefit in responding to the Board's direction. Counsel for each of the parties agreed that the Board may rely on the partial agreement on facts in ruling on the preliminary motions in the section 68 complaints.
2It is useful at this juncture to itemize the preliminary motions. With respect to the section 68 complaints, counsel for the trade union asserted the complaints should be dismissed as not disclosing a prima facie case, not being adequately particularized and/or not disclosing a prima facie case for the remedy requested. Those preliminary objections initially raised by the respondent company may be characterized for convenience as the "res judicata" objection, the "election" objection and the "timeliness" objection. Subsequently, counsel for the company indicated that he was withdrawing the "timeliness" objection as a preliminary matter. Counsel reserved his right to argue timeliness with respect to relief and to cross-examine the complainant with regard to facts asserted by him (the complainant) in connection with the timeliness question as a mater of credibility, should the hearing proceed to the merits. For ease of exposition, the respondent trade union in the section 68 complaints (and the intervener in the OHSA complaint) is referred to as the "union". The respondent in the OHSA complaint (and the intervener in the section 68 complaints) is referred to as the "company". The Board notes that the December 21, 1988 decision inadvertently failed to note the result of an oral ruling by the Board wherein the company was added as intervener in the section 68 complaints. The styles of cause shall be amended accordingly.
3This decision deals with the preliminary objections of both the trade union in the section 68 complaints and the company in the OHSA complaint. The Board intends to consider first the OHSA complaint. In the Board's view, it is useful to reiterate the partial agreement on facts and the facts assumed true and provable only with respect to the preliminary objections in the OHSA complaint.
4The partial agreement on facts is as follows:
(a) The complainant was an employee of the company, a member of the union and a health and safety representative.
(b) The complainant, as health and safety representative, was a member of the health and safety committee and was aware that there was legislation dealing with health and safety. The health and safety committee held meetings attended by the complainant; those meetings dealt with specific health and safety concerns at the company.
(c) The company operates a metal processing business.
(d) There was a collective agreement in effect between the company and the union at all material times.
(e) A work stoppage occurred at the company on July 24, 1986 in respect of which the Board issued an order pursuant to section 92 of the Act and an injunction was obtained naming as defendants, inter alia, the complainant.
(f) The union did not represent the defendant at the Supreme Court of Ontario with respect to the injunction proceedings. Further, the union did not appear in those proceedings, nor was it named in its own right.
(g) With respect to the section 92 application, the union was also not named in its own right but did appear at the hearing. Initially, the union did not represent those employees named in the section 92 application but, at some point during the proceedings, that changed and the union did represent those employees.
(h) An injunction was issued on July 28, 1986 in respect of the work stoppage.
(i) On or about August 5, 1986, the complainant was terminated from his employment, as were other employees. His termination letter was dated July 30, 1986.
(j) Arbitration hearings before Arbitrator Hinnegan were held on October 21 and 22 and November 5, and 6, 1986. At those hearings, D. Nicholson acted as counsel. Between the date Nicholson was retained and the arbitration hearing, Nicholson had discussions with the grievors. [The parties were not in agreement as to whether Nicholson represented the union at the arbitration hearing or, as asserted by complainant's counsel, directly represented the grievors, although his fees were paid by the union.]
In addition, a number of exhibits had been filed on consent, including the Hinnegan arbitration award released December 19, 1986.
5The facts asserted by complainant's counsel and assumed true and provable only with respect to OHSA preliminary objections are next set out:
(a) Nicholson directly represented the grievors, including the complainant, at the arbitration hearings and was not there as the representative of the union. That is, Nicholson was paid by the union to represent the grievors.
(b) During that period of time (between Nicholson's hiring and the arbitration hearing when Nicholson had discussions with the grievors), the complainant expressed concern that he had been fired not because of the work stoppage but for other reasons, including the fact that he was health and safety representative. That concern was not pursued and the complainant was not advised that there might be an alternative procedure available or that that procedure might give rise to any particular rights or remedy.
(c) During the complainant's employment and while he was acting as health and safety representative, the complainant did not receive training with respect to health and safety procedures nor did he attend seminars with respect to health and safety complaints. The complainant was not aware of any relevance those procedures may have had.
(d) Following the release of the arbitration decision, the complainant and the other employees who were discharged had discussions with union representatives with respect to appealing the arbitration decision, that is, submitting the matter to judicial review. The complainant received information in early 1987 that the union had decided not to proceed to judicial review.
(e) Subsequent to that union decision, the local union membership at the company signed a petition in which the members expressed their desire to have steps taken to challenge the arbitration decision. That document is not dated.
(f) Throughout the remainder of 1987, the complaint had discussions from time to time with various representatives of the union to the effect that a challenge to the arbitration decision was still being considered. The complainant frequently called the union concerning that matter.
(g) In late 1987, the complainant personally became aware of section 89 of the Labour Relations Act through reading newspapers and doing research on his own. He contacted the Board by telephone and, two weeks later, received complaint forms which he filled out and submitted (Board File 2800-87-U, filed January 14, 1988). The complainant had also contacted a union representative (R. Chaborek) to get copies of the notes taken at the arbitration hearing and was told they could not be found. Approximately during the same period in late 1987, the complainant became frustrated by the union s inactivity in challenging the arbitration award.
(h) The original complaint (dated January 14, 1988) was drafted by the complainant on his own while he was still concerned that he had not been successful in obtaining the arbitration notes. The complainant approached legal counsel but first needed to obtain a legal aid certificate, following which he approached present counsel and learned of the possibility of bringing an occupational health and safety action.
(i) At arbitration, only one issue was submitted to the arbitrator for decision as set out in page 2 of the arbitrator's award. The complainant was not called upon to testify with respect to his beliefs that he was discharged for reasons other than the illegal strike nor was that issue submitted to the arbitrator in any fashion nor with his knowledge. At no time was the complainant called upon to make an election or advised that he had an election to make.
(j) Following his discharge, the complainant's employment was spotty and he had limited funds. Given the petition (referred to in (e) above), the complainant relied on assurances by the union that matters were being considered which would lead to judicial review or other steps would be taken by the union to protect his interest.
PRELIMINARY OBJECTIONS IN THE OHSA COMPLAINT
6The submissions of counsel are next set out in a highly abbreviated form.
7Counsel for the company contended the OHSA complaint should be dismissed on two grounds, namely, that the complaint was "res judicata" and that the complainant had elected to proceed by way of arbitration rather than before the Board. With respect to the first ground, counsel argued that the appropriateness of the discharge had been challenged and litigated at arbitration and the penalty upheld. It was submitted that the Hinnegan award touched on the health and safety issues in considering the illegal walkout and the Arbitrator had determined, notwithstanding the complainant's denials, that the complainant was a leader of the illegal work stoppage. Counsel submitted further litigation on essentially the same facts, i.e., the circumstances leading to the termination, was precluded on a "res judicata" analysis. Moreover, given the express finding of Arbitrator Hinnegan that the complainant was a leader of the illegal strike, it was inappropriate for the Board to reconsider the matter; indeed, the Board lacked jurisdiction to do so. Cases referred to in this regard were: Windsor Western Hospital Centre Inc. v. Mordowanec et al. (1986), 86 CLLC ¶14,051; Toronto Transit Commission (1985), 1985 CanLII 5461 (ON LA), 21 L.A.C. (3d) 346. As to the second ground, counsel contended that the complainant, having been represented directly at arbitration by Nicholson (in the complainant's view), must be taken to have elected to proceed before an arbitrator rather than the Board given that the routes available for redress in section 24(2) of the OHSA are in the alternative. As indicated in the Hinnegan award, the "health and safety" issues were dealt with and, indeed, counsel argued the complainant was content to have his discharge challenged through arbitration until the decision issued upholding the termination. Having had "the matter" of the discipline litigated, it was submitted the Board should not permit the complainant to raise the issue in a different forum. Counsel reviewed the relevant Board jurisprudence and contended the caselaw supported his assertions regarding election: Reed Limited, [1978] OLRB Rep. Jan. 1; Scarborough General Hospital, [1988] OLRB Rep. Sept. 981.
8Counsel for the trade union also reviewed the jurisprudence in some detail with respect to the "election" issue, submitting that, while the union had carriage of the grievance, once the grievance proceeds to arbitration, the complainant is deemed to have elected the arbitral route for redress with certain exceptions not applicable herein: Reed Limited, supra; Scarborough General Hospital, supra; Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283 and the cases cited therein. Counsel argued that the "election" analysis in the caselaw reflected a necessary balancing of the various interests involved including the protection conferred on the individual in section 24 of the OHSA, the carriage of the grievance process in the union, the labour relations interests in adjudication of the discipline without duplication of proceedings and the risk of inconsistent decisions. Thus, counsel concurred with the analysis by the company counsel of the election issue and submitted the complaint should be dismissed.
9Counsel for the complainant submitted that the right of complaint in section 24(2) was that of the employee and the choice of route for redress was also the employee's. Further, counsel contended that the concept of "choice" required "knowledge" by the employee of the available options and that this "knowledge" constituted a further exception to the circumstances set out in the jurisprudence in which an employee would otherwise be deemed to have opted for arbitration. In the instant case, the complainant did not know of the options and, hence, could not be "deemed" to have chosen the arbitration route. As well, it was argued that "the matter" referred to in section 24(2) was the OHSA issue and, in counsel's view, the Hinnegan award only dealt with the "illegal strike" issue. With respect to the Hinnegan award, counsel also submitted that the complainant's testimony that he was not a dissatisfied employee was compatible with a belief at the time that his discharge was because he had raised health and safety concerns. In particular, counsel referred to Scarborough General Hospital, supra, in support.
10Counsel for the trade union submitted that the necessary accommodation between the OHSA and the concept of agency implicit in a collective bargaining regime was appropriately reflected in the jurisprudence through the principle of a "deemed election" by the employee of the arbitration route except in certain circumstances. That is, the choice of arbitration was the "actual" choice of the bargaining agent and must be taken to bind the employee except in those circumstances set out in the jurisprudence and not here relevant. If the bargaining agent failed to inform the employee of the statutory rights under the OHSA and/or the option of proceeding before the Board or arbitration, that might found a section 68 complaint but was not relevant to the options contained in section 24 of the OHSA. To hold otherwise would encourage forum shopping by employees unhappy with the result at arbitration.
11Company counsel asserted that the complainant had full opportunity to express his concerns as to the purported "real" reasons of his termination at arbitration and had expressed the contrary, as noted in the Hinnegan award. As to the election issue, counsel submitted the caselaw was a necessary elaboration of the permissive wording in section 24(2) and should be followed in the instant case. Finally, it was argued that if the Board heard the OHSA complaint on the merits, found for the complainant and reinstated him, this would fly in the face of the arbitration award which upheld the complainant's termination because of his leadership role and participation in an illegal walkout. Such a conflict would be neither sensible nor possible given the jurisprudence and the "no-strike" provisions of the Labour Relations Act.
12The Board, then, turns to an examination of the "election" issue and the "res judicata" issue assuming true and provable those facts asserted by the complainant's counsel in paragraph 5 in the context of the agreed statement of facts and the documentary material. That is, the assertions are accepted as true and provable to the extent that they are not contradicted by facts expressly agreed to by the complainant (in paragraph 4) or the documentary material filed on consent.
13With respect to the "election" issue, the Board considers it useful to set out at this juncture the following passage from The Municipality of Metropolitan Toronto, supra:
Section 24(1) and (2) of the OHSA read:
(1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply, with all necessary modifications, to the complaint.
It is agreed by the parties, at least with respect to the OHSA issues, that section 24(2) of the OHSA requires an election, i.e., that a worker must choose either to proceed before the Board or the arbitration route. The Board concurs that such an election of forum for redress is clear on the wording of section 24(2); see also Reed Limited, supra; Inco Metals, supra; Black & McDonald Ltd., [1983] OLRB Rep. Dec. 1971. The Board, however, does not accept the complainant's assertion that the OHSA issue is severable from the grievance so that the Board could deal with that issue while the arbitration panel hears the layoff issue. The "matter" referred to in section 24(2) is the alleged violation of 24(1), namely, that an employer acted to penalize a worker, as set out in sub (a) to sub (d), because the worker complied with or sought enforcement of the OHSA. That issue of improper (or unjust) discipline is the "matter" to be heard at arbitration or before the Board. While the respondent asserts that the undisputed fact that the complainant is no longer an active employee is as a result of layoff, there is not doubt that section 24(1) of the OHSA is integral to the grievance should the grievance be adjudicated in an arbitral forum. The grievance form itself refers to "termination without just cause" rather than improper layoff or some such language. Section 24(1) affords workers a right of protection from penalties for invoking the OHSA; that right is enforceable under the legislation either at arbitration or before the Board. The Board also does not accept the complainant's characterization of the Board as the "expert" forum in respect of alleged violations of section 24(1) of the OHSA. As noted in Reed Limited, supra, there can be no general assumptions as to which forum is more suitable. Both are on an equal footing and the statute gives the worker the choice. The Board need not determine precisely whether the remedies available before the Board are broader than at arbitration; rather, the Board regards the remedial authority of either as quite adequate to deal with a violation of section 24(1). Moreover, the Board notes that the Board is not the vehicle for enforcing the OHSA beyond the rights in section 24(2). In this regard, the Board comments that the "monitoring" relief requested in item (e) of the complaint would not be appropriate.
The Board next deals with the fundamental issue raised in the preliminary motion, namely, at what point does the worker elect his or her forum for resolution of the alleged contravention of section 24(1) of the OHSA. In Reed Limited, supra, the Board rejected an assertion that initiation of the grievance process constituted an election. Rather, workers should be encouraged to utilize the grievance process, where such exists, before pursuing the statutory procedure. However, the Board in Reed continued, at paragraph 13:
Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.
- The concept of "authorizing" the union to proceed to arbitration was raised in Inco Metals, supra, where, although the union indicated initially that the grievance would proceed to arbitration, the grievance was then withdrawn and a complaint filed with the Board. In the circumstances of that case, the Board found that the delay in filing the complaint was not excessive and, further, as there no longer was a "live" grievance ongoing in the grievance procedure, the Board should hear the complaint. Again, though, the Board cautioned:
"as the Board went on to note in Reed Limited, however, the employee cannot ride two horses: and once he authorizes the matter to be posted to arbitration, he cannot withdraw that authorization and insist that the matter be filed with the Board instead." (at paragraph 10).
The Board concurs with the reasoning in Reed Limited, supra, whereby workers are encouraged to utilize the grievance process, where available, to attempt to resolve the matter before adjudication. Further, the Board agrees with what is essentially a balancing of interests in Inco Metals, supra, a recognition that the union has carriage of a grievance but that it is the worker, not the trade union, who is accorded statutory protection under section 24(1) of the OHSA. That is, where a trade union decides not to proceed to arbitration, a worker should not thereby be precluded from coming to the Board, at least, in a timely fashion.
This Board in this instance need not determine with absolute precision the point at which an election is made pursuant to the statute. In the Board's view, however, that point is not the initial notification to proceed to arbitration, of itself, but conduct by the union in accordance with that notice, conduct such as, the selection of the arbitrator/arbitration panel. Such conduct represents the commitment of the union, as agent for the worker, to the arbitration process, and, therefore, the election of that route for redress. Although the Board recognizes that grievances may be abandoned or settled subsequent to the point noted (indeed, settlement may occur up to the issuance of an arbitration award), the Board regards the test outlined as appropriate. To permit an "election" at any point prior to the actual commencement of an arbitration hearing would not encourage the expeditious resolution of a health and safety complaint. Such expeditious resolution is to be encouraged as a matter of public policy. See also Tecumseh Products of Canada Limited, [1985] OLRB Rep. Jan. 123, for the impact of delay on the Board's exercise of discretion to hear an OHSA complaint. Furthermore, depending on the scheduling of the arbitration and Board hearings, there could well be costs involved in cancelling the arbitration date(s), costs which it should be noted the complainant would not bear.
The Board would add two caveats to the foregoing in recognition of the reality that it is the union, not the individual (with relatively few exceptions in collective agreements), which has carriage of the grievance. Firstly, where a worker objects, in a timely fashion, to the union proceeding to arbitration, and instead comes to the Board for relief, the Board may not hold the worker strictly bound by the subsequent acts of the union with respect to the arbitration process. The circumstances of the case, including the manner and timing of the objection, the delay in filing the complaint with the Board, etc., would be relevant factors in determining whether the Board should hear the complaint. Secondly, should the union, after proceeding down the "arbitration" route, unilaterally settle the grievance, the Board may consider it appropriate in some circumstances to permit the worker to come before the Board: see, for example, Inco., supra.
On the instant facts, however, the union has proceeded, without protest by the complainant, well beyond an initial notice to arbitrate. The union notified the employer of its intention to proceed to arbitration in July 1985. After some delays as a consequence of deciding upon the format for the arbitration, the grievance is now scheduled for hearing for June 11, 1986. The complainant has not objected to the union's carriage of the grievance; indeed, the complainant wants the arbitration to proceed on the "layoff' issue. Moreover, the instant complaint was not filed with the Board until November 18, 1985. In the circumstances, the Board considers that the complainant has made his election under the statute to proceed to arbitration and is now bound by that election. To continue the analogy in Reed Limited, supra, while a worker may be permitted to ride two horses during the grievance process, he or she will not be permitted to change horses midstream in the arbitration process.
14The concept of election developed in the jurisprudence just cited (see also Scarborough General Hospital, supra, and the cases cited therein) reflects the Board's balancing of various interests. While workers should be encouraged to utilize the grievance process, where available, to seek to resolve the matter before adjudication, since arbitration is an equal route for redress under section 24(2) of the OHSA with the Board, duplication of proceedings, with its consequent impact on costs, forum shopping and the potential for conflicting decisions, should be avoided.
15Counsel for the complainant asserted that "the matter" referred to in section 24(2) of the OHSA was only the "OHSA" issue while the Hinnegan award solely dealt with the "illegal strike" aspect. With respect, that approach was rejected in the Municipality of Metropolitan Toronto, supra, at paragraph 10, in an analysis with which this Board agrees. The "matter" is the consequence for the worker imposed by the employer (as set out in sections 24(1)(a) to (d)), not the reason for the consequence. It is the reason for the consequence which is the subject of the adjudication whether before the Board or at arbitration. If the reason is determined to be "because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations", the consequence is prohibited by the OHSA. Whether before the Board or at arbitration, the employer must articulate its "reason" for imposing the "consequence" on the worker and that reason is subject to the appropriate scrutiny.
16Counsel for the complainant also contended that, for the worker to "choose" the route for redress, the worker had to have actual knowledge of the two options available and this "knowledge" requirement constituted a further exception to the circumstances set out in the jurisprudence wherein a worker would otherwise deemed to have opted for arbitration. The Board disagrees. It is accurate to note that the right of redress under section 24(2) of the OHSA is the worker's. However, with respect to the representation of the workers in the bargaining unit vis-a-vis the employer, the trade union has exclusive authority (subject to the constraints set out in section 68 of the Labour Relations Act). This authority includes (with relatively few exceptions) the carriage of grievances. As noted in paragraph 15 of the Municipality of Metropolitan Toronto, supra, the caveats to the election principles reflect an accommodation between the institutional rights of the bargaining agent and the statutory protection afforded a worker under section 24 of the OHSA. In the Board's view, the exceptions should be narrowly restricted as the risks of broadening their reach would undermine the very reasons why the election principles were developed, i.e., to avoid duplication of the proceedings with attendant increased costs, forum shopping, and potential for inconsistent decisions. These concerns led to a focus on the conduct of the worker and the bargaining agent, in determining the election issue, rather than an examination of the reasons for the decision to select one route or another. Steps taken which are confirmatory of the initial notification to proceed to arbitration (such as selection of the arbitrator, etc.) are deemed, subject to the two caveats, to constitute an election because to do otherwise would lead to a duplication of proceedings. Where the discipline of the worker has been litigated at arbitration, the "matter" has been dealt with within the meaning of section 24(2) of the OHSA. Whether the worker "knew" at the time of another possible route for redress is irrelevant to the "election" process because that lack of knowledge did not prevent an adjudication of "the matter" in terms of section 24(2) of the Act. The lack of knowledge or, conversely, the quality of the communication between the bargaining agent and the worker (or even the union's conduct at the arbitration hearing) may well ground a section 68 complaint under the Labour Relations Act but does not vitiate the choice of forum pursuant to section 24(2) of the OHSA.
17In the instant case, the termination of the complainant (and others) was litigated before Arbitrator Hinnegan. Because the termination was upheld, the complainant seeks to come before the Board. This is precisely what the election doctrine was developed to avoid. Neither of the caveats expressed in the Metropolitan Toronto case, supra, is applicable. The grievance proceeded to arbitration with the complainant's consent; indeed, on the complainant's view of the facts (see paragraph 5), the complainant was directly represented by counsel at the arbitration hearing. Assuming true and provable the complainant's asserted lack of knowledge of his rights to redress under section 24(2) of the OHSA, that is irrelevant, for the reasons already noted. Assuming true and provable the complainant's assertion he was not called upon to testify with respect to his beliefs that he was discharged for reasons other than the illegal strike may well be relevant to a section 68 complaint but is not relevant to whether the arbitral route had been chosen to challenge the termination. Whether the assertion in paragraph 5(b) that the complainant expressed his concern to Nicholson that the real reason for his discharge was for health and safety reasons is consonant with his testimony in arbitration that he was "not a dissatisfied employee and was happy in all respects with the circumstances of Zalev Brothers" need not be determined by the Board to resolve the election issue. With respect to the assertion in paragraph 5 that only one issue was submitted to the arbitration for decision, it is clear from the face of the arbitration award, that the issue before the Arbitrator was whether the discharge of the complainant (and others) was justified for the reason proffered by the company, that is, their alleged participation in an illegal strike. The Board in the Metropolitan case, supra, rejected any bifurcation of the possible reasons for discipline between arbitration and the Board. The Board herein likewise exercises its discretion not to hear the complaint in order to avoid a process whereby the discipline imposed is adjudicated twice, wherein the defence (participation in the illegal strike) may be raised by the company at arbitration in response to an assertion of "unjust discipline" and is litigated, only to have another, more specific, assertion raised subsequently that the discipline was contrary to section 24 of the OHSA. In the Board's view, the complainant, through his bargaining agent and with no objection from the complainant, elected the arbitral route for adjudication of his discharge. In the instant case, the arbitration process was completed and a decision rendered. Now, the complainant seeks a second adjudication of the reasons for his termination. The instant case most dramatically illustrates the utility of the election doctrine developed by the Board. Section 24(2) of the OHSA provides for the matter to be dealt with by arbitration or by the Board. The routes are alternative. Quite simply, the complainant has had his termination challenged at arbitration and is not entitled to a second adjudication of this discipline at the Board.
18Thus, the Board upholds the employer's preliminary objection on the election issue and, accordingly, the OHSA complaint is dismissed. In view of the Board's conclusion, the Board need not deal with the second preliminary motion of the employer that the complaint be dismissed as "res judicata".
PRELIMINARY OBJECTIONS IN THE SECTION 68 COMPLAINTS
19The Board next turns to the preliminary objections raised by the trade union in respect of the section 68 complaint, namely, whether the complaints disclose a prima facie case, were adequately particularized and/or disclosed a prima facie case for the remedy requested. The union withdrew one preliminary objection that the complaints be dismissed because of the delay in initially filing the complaints and the delay between the initial filings and the hearing. Again, the submissions of counsel are set out in a highly abbreviated form.
20Counsel for the union reviewed the two section 68 complaints and the documentary material filed in some detail. Counsel asserted that the initial section 68 complaint (the "January 1988" complaint) and the second section 68 complaint (the "April 1988" complaint) did not disclose a prima facie case for a breach of the duty of fair representation. In the alternative, to the extent that the allegation that the "real" reason for not proceeding to judicial review constituted a prima facie contravention of section 68, it was submitted that the complaint should be dismissed nonetheless as fundamentally defective with respect to particulars or, at the very least, the complainant should be restricted to adducing evidence with respect to the terms of the complaints themselves and should be precluded from amending those complaints in any way. In this regard, counsel stressed the request for particulars made by the union in writing (May 26, 1988) to which the complainant's counsel had not responded to date nor, further, was complainant's counsel undertaking at the hearing to provide the requested particulars. In the further alternative, counsel for the union contended that the complaints did not disclose a prima facie case for the remedy requested and, so, should be dismissed on this basis. Counsel emphasized that his submissions were not technical but founded on principles of natural justice whereunder a party is entitled to know the case to be met. In the instant complaints, the particulars were so lacking as to prevent the union from preparing a defence; this prejudice was so great as to warrant dismissal of the complaints without a hearing on the merits or any such hearing must be restricted to matters already in the complaints.
21Counsel for the company submitted that the two section 68 complains taken together with the documents filed on consent were sufficient to constitute a prima facie case, albeit weak. However, counsel concurred with union counsel that the complaints were defective with respect to particulars. Further, since complainant's counsel had not replied to the union's request for particulars, if the matter proceeded to the merits, the evidence should be restricted to matters actually alleged. To do otherwise and permit the complainant to add a factual foundation at this point would be for the Board to condone an abuse of process.
22Counsel for the complainant submitted that the union understood the issue in dispute was the propriety of the union's decision not to seek judicial review of Arbitrator Hinnegan's decision and was aware of the material facts. Further, the complainant was not privy to the direct discussions wherein the union reached its decision but had to rely on those persons who conveyed information to him. Counsel asserted there was no prejudice to the union and that the union was seeking the evidence which the complainant intended to lead rather than particulars. It was contended the union's position was technical and the Board could direct the production of specific particulars to "correct" any problems. Counsel argued that the union's request for particulars was imprecise and the union did not follow up that request. Finally, counsel submitted the complaints disclosed a prima facie case and were sufficiently particularized as the complainant need not disclose, for example, the "background" material tending to show the "animus" of the union.
23The Board must deal with each of the preliminary objections of the union: did the complaints constitute a prima facie case and/or a prima facie case for the relief requested; are the complaints adequately particularized, especially in view of the union's express request for particulars, so that the complaints should be dismissed outright or, at least, the evidence restricted to the "four corners of the complaints. Rule 72(1) requires that allegations of wrongdoing be supported by a "concise statement of the material facts, actions and omissions" upon which the complainant intends to rely. Pursuant to Rule 72(4), a person is precluded from adducing evidence at the hearing of any material fact which has not been included in the complaint or document filed except with consent of the Board. Further, in accordance with Rule 71(1), a complaint which does not, in the opinion of the Board, make out a prima facie case for the remedy requested may be dismissed without a hearing. In that context, then, the Board examines the January 1988 complaint and the April 1988 complaint.
24It is useful to set out the text of each complaint at this juncture. The January 1988 complaint, completed by the complainant himself, reads:
On or about Jan/87 the grievor(s) was (were) dealt with by U.S. W.A. Local 14045 - Zalev Unit of the respondent contrary to the provisions of Section 68 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: Act in a arbitrary and discriminatory manner against the vote of Local 14045 - Zalev Unit, executive and membership, to proceed to judicial review of Mr. Hinnegan's award.
The complaint continues, under "other relevant statements":
How could a member of the work force ever expect a fair and impartial hearing from Mr. Hinnegan, given Mr. Hinnegan's inclination to side with the company against working people. His history of awards clearly favours the company. Since the statistics for Ontario Arbitration awards show 50-50 for company and union, one must suspect prejudice.
The statement that I was happy and subsequently helped Mr. Hinnegan make a decision against me, seems far fetched. The question of credibility must include something more than a slightly confused answer concerning my happiness that any pollster can find anytime.
25The April 1988 complaint, which was filed by complainant's counsel states as follows:
(a) On or about January 1988 the grievor(s) was (were) dealt with by the United Steelworkers of America, Local 14045 of the respondent contrary to the provisions of section(s) 68 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent:
The Respondent, by its representatives, acted in an arbitrary and discriminating manner and in bad faith. The issue of taking judicial review proceedings from a decision of K. A. Hinnegan, arbitrator, was taken to the membership of the Zalev Unit, and a vote was carried out at which time the vote result was in favour of judicial review. The complainant was fired by Zalev Brothers Limited, which decision was upheld by the arbitrator. However, it is clear that there are grounds for judicial review of that decision, not the least of which is the arbitrator's previous record of favouring the employer, and his failure to deal with or consider certain facts which could, if they were accepted, result in a different decision.
(b) The complainant believes that the real reason he was fired by the Company originally and that the Respondent Union has not assisted him, is the fact that at the time he was fired he was the Health and Safety representative and he was actively pursuing health, safety, and environmental issues which the Union leadership felt was endangering a shut down of part or all of the Zalev Brothers Limited operation, thereby occasioning lay offs or lost jobs.
(c) This is not the first time that the Respondent Union has refused to assist Mr. McIntyre or the other persons that were disciplined at the same time as him. The original problem, according to the discharge documents was an illegal walk out. The Respondent Union, by its representatives refused to provide legal counsel or advise at any time during the subsequent proceedings until it was ordered to do so by the Ontario Labour Relations Board. The Respondent did not provide counsel for a proceeding before His Honour, Judge Kenneth Oueiiette for an injunction; it did not provide counsel for proceedings before the Ontario Labour Relations Board, Patricia Hughes, Vice-Chairman. These hearings took place on July 28 and 29, 1986 respectively.
(d) Since the date of the walk-out the Respondent has not assisted Mr. McIntyre except under order to do so.
(e) Consequently the complainant contends that the Respondent Union has breached its duty of fair representation by discriminating against the complainant in part because of his actions as the health and safety representative if not totally for this reason, and that in so doing the Respondent has taken part in the imposition of a penalty upon the worker contrary to Section 24(1)(c) of the Occupational Health and Safety Act. The Complainant states that the decision not to intervene to assist him made by Joe Ginty, Business Agent, or the executive of Local 14045, was made on this basis.
[The Board has added the subsection markings for ease of reference.]
26The complaints were filed in January and April 1988. Counsel for the respondent trade union requested particulars in his letter of May 26, 1988. The Board rejects the submissions of complainant's counsel that the letter of May 26, 1988 requesting particulars was imprecise and should have been followed up by union counsel. That letter clearly requests particulars and expressly puts the complainant on notice of the various preliminary motions which the union intended to raise, including that "the Board limit the evidence strictly to the material facts which have been properly particularized". In the circumstances, especially given the date of the request and the absence of a response by complainant's counsel for over six months, the risk that evidence will be restricted to the material facts which, in the Board’s view, have been properly particularized is to be borne by the complainant. That is, in the circumstances and given Rule 72, the Board considers it appropriate, in order to prevent abuse of its process, to preclude the complainant from leading evidence in support of his complaint with respect to matters which have not been particularized already in the complaints themselves.
27This decision by the Board to restrict the evidence which the complainant may adduce to the "four corners" of the complaint requires a detailed review of the complaints in the context of the documents filed on consent and the agreed facts as set out in paragraph 4. As noted, the parties expressly agreed that the Board could rely on those facts in ruling on the preliminary objections in the section 68 complaints. Again, as mentioned, the facts assumed true and provable in paragraph 5 were expressly restricted to the preliminary objections in the OHSA complaint. The Board, therefore, does not rely on those alleged facts.
28The gravamen of the January 1988 complaint, also reflected in the April 1988 complaint, is that the union acted in an arbitrary, discriminatory or bad faith manner in its decision not to proceed to judicial review of the Hinnegan arbitration award in the face of a vote of the union membership at the company in favour of judicial review. The text of the complaint indicates the ground for the complaint (Arbitrator Hinnegan's alleged inclination) and notes the issue of the complainant's credibility in the arbitration award. The relief sought is that the union be directed to proceed to judicial review of the Hinnegan decision. In the Board's view, this is sufficient to disclose a prima facie breach of section 68 of the Act and a prima facie case for the remedy requested. No further particulars are necessary with respect to this ground.
29The Board next turns to the April 1988 complaint in detail. The section marked (a) discloses a prima facie case, on the same basis as noted in paragraph 28. The Board finds that section (b) and the first sentence in section (c) are not sufficiently particularized and the complainant will not be permitted to adduce evidence with respect to those matters. The complainant has not provided the material facts necessary to comply with Rule 72 regarding the alleged conduct of and position taken by the union and its officials. In section (c), the second sentence is not in dispute. It is also agreed that the union did not represent the complainant with respect to the injunction proceeding. With reference to the proceedings before the Board, Patricia Hughes, Vice-Chair, it is agreed that the union, while not named in its own right, did appear at the hearing and at some point during the proceedings did represent the employees (including the complainant). Thus, the alleged fact cannot survive in the face of the agreed fact except in part, i.e., that the union did not provide counsel to represent the complainant during the initial stages of the proceedings before Vice-Chair Hughes. However, the relief sought (judicial review of the arbitration award) does not flow from the alleged breach, even if proved true. Hence, the Board need not deal further with this aspect.
30Remaining in section (c) is the sentence "The Respondent Union, by its representatives refused to provide legal counsel or advise at any time during the subsequent proceedings until it was ordered to do so by the Ontario Labour Relations Board". To the extent this assertion refers to other than the Hughes proceeding (which the Board has just dealt with), the assertion is not sufficiently particularized to comply with Rule 72. Specifically, the details of the material facts of the alleged misconduct are not pleaded. Thus, the complainant will not be permitted to adduce evidence with respect to such matters. The Board applies the same reasoning and conclusion with regard to section (d).
31The first sentence in section (e) merely constitutes a bald assertion and is not sufficiently particularized insofar as it refers merely to the "reason" in whole or in part being the complainant's "actions as health and safety representative". The complainant will be precluded from adducing evidence with respect to such matters. To the extent the reference in (e) to the union taking part in the "imposition of a penalty contrary to section 24(1)(c) of the OHSA" refers to a breach by the union of section 68, the same reasoning with regard to absence of particulars applies and the complainant will be precluded from leading evidence with respect to this assertion. Further, the Board notes that a trade union cannot itself breach section 24(1) of the OHSA (except, perhaps, in circumstances in which the trade union is itself an "employer" or "person acting on behalf of the an employer", which is not suggested in the instant case). The last sentence names Joe Ginty as the union official whose decision not to assist the complainant constituted a breach of section 68. To the extent this refers to the decision not to proceed to judicial review, the particular is adequate. Insofar as the sentence refers to other decisions of Ginty's, the matter is not adequately particularized as those decisions (if any) are not identified and evidence will be precluded. The final reference to "on this basis" properly refers back only to what now remains of the complaint.
32The Board has reviewed the complaints in detail in order to demarcate the limits of the evidence which the complainant will be permitted to lead in support of the allegation that the union breached section 68 in its decision not to proceed to judicial review of the arbitration award. But for the failure of the complainant to properly particularize the allegations and the factual statements expressly agreed to by the parties without limitation, the scope of evidence may well have been broader. However, in the circumstances and for the reasons given, the Board concludes that the evidence must be restricted as indicated above.
33To recapitulate, the complainant will not be permitted to adduce evidence with reference to section (b), section (c), section (d),the first sentence in section (e) and the second sentence of section (e) beyond the decision of the union official Ginty not to proceed to judicial review. It must be stressed that the complainant's counsel is not limited in his submissions as to how the facts agreed to, the complainant's evidence with regard to matters properly particularized, the evidence, if any, properly adduced by the other parties and the documentary material warrant a finding that the union contravened section 68 in deciding not to proceed to judicial review of the arbitration award upholding the termination of the complainant (among others).
34Having regard to the foregoing, the Board directs the Registrar to list the section 68 complaints for hearing in consultation with the parties; the OHSA complaint is dismissed.