Retail, Wholesale and Department Store Union v. Cuddy Food Products Ltd.

[1989] OLRB Rep. February 126

1363-87-R; 1928-87-U Retail, Wholesale and Department Store Union, AFL:CIO:­CLC:, Applicant v. Cuddy Food Products Ltd., Respondent v. United Food and Commercial Workers' International Union, Local 175 and United Food and Com­mercial Workers' International Union, AFL-CIO-CLC, Interveners; John Henson and 25 others, Complainants v. United Food and Commercial Workers' Interna­tional Union, AFL-CIO-CLC, United Food and Commercial Workers' Interna­tional Union, Local 175 and Cuddy Food Products Ltd., Respondents; Deb John­ston and others, Interveners

BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

DECISION OF THE BOARD; February 28, 1989

1. By letter dated February 3, 1989, counsel for the applicant and complainants asks that we reconsider and vary our decision of December 9, 1988 (hereafter referred to as "the decision"). For reasons set out in this decision, we deny that request.

[Paragraphs 2 to 11 omitted. Editor]

12. Under the heading "Re Remedy", counsel submits that we erred in awarding damages only to the complainants. He asks that we vary our decision to award damages to all employees affected by the UFCW's breach of the Act. In support of that request, he makes the following sub­missions:

13. This complaint, although signed by 26 employees, was brought on behalf of all of the employees who had been affected. The employees in question held regular meetings with the other employees in the bargaining unit to advise them of the outcome of the proceedings and were at all times acting as their agents.

14. It is inappropriate when considering a remedy of damages that a wrongdoer should profit from their own wrong. In this case, UFCW has been found to have breached Section 68 of the Act by not consulting all of the employees who were affected by the conclusion of the 10 Cuddy Boulevard collective agreement in the summer of 1987. It is submitted that it is inappropriate and contrary to the fundamental principles of remedy that UFCW should now only have to compensate certain named employees in this complaint. It is further submitted that the Board's jurisdiction under Section 89(4)(c) is specifically stated to be broad enough to include other employees affected by the breach of the Act. That section reads as follows: [quote omitted].

15. Although the Board's jurisdiction with respect to reinstatement is quite logically stated to related to rehiring the person or employee concerned, the section dealing with compensation has no similar restriction. In other words, nowhere in Section 89(4) does it state that the Board's jurisdiction is limited to granting a monetary rem­edy or compensation to those employees who are named in a particular complaint. It is submitted that the Board is bound and mandated under the Act to rectify the act or acts complained of. In particular where there has been a claim made against a trade union under Section 68 which represents all of the employees in the bargaining unit, then the Board is required to determine what would rectify the trade union's breach of the Act with respect to all of the employees in the bargaining unit. This may not be the case in every complaint under Section 68, but clearly in a complaint of this nature where the whole bargaining unit is affected by the breach, then the only was to grant a remedy to rectify the breach of the Act is to ensure that the remedy applies to all employees affected in the bargaining unit.

16. There appear to be two alternate submissions. One is that other similarly affected employees had authorized the complainants to act on their behalf in these proceedings and should now be treated as parties entitled to a remedy like that awarded to the complainants. The other is that, upon proof that they and others had been subjected to the same unfair treatment contrary to the Labour Relations Act, the complainants were entitled to have the Board determine and award a remedy for the unfair treatment of those others even if the others had neither complained to the Board nor authorized the complainants to do so on their behalf.

17. Form 58, the prescribed form by which complaints under section 89 are initiated, specif­ically contemplates a complaint's being filed on behalf of a person or persons other than the named complainant. Such persons are described in the form as "grievors". When a complaint is filed in that way, the complaint is the grievor's; he or she is considered to have control over it: Norak Steel Construction Ltd., [1968] OLRB Rep. Sept. 638. The form requires that the names, addresses and telephone numbers of such grievors be listed in paragraph 2 of the complaint. The clear intent of the form is that complainants identify clearly the persons whose treatment is the subject of the complaint.

18. Where a complainant names another as grievor, the Board is concerned that the com­plainant has the grievor's authority to represent his or her interests. Except where the complainant is a trade union with bargaining rights for a unit which includes the grievor, the existence of that authority will not be assumed: Adbo Contracting Company Ltd., [1977] OLRB Rep. Apr. 197.

19. As filed October 13, 1987, the complaint in Board File 1928-87-U named 23 persons as complainants. It indicated in its paragraph 2 that the grievors were the 23 complainants. It said - 'the Complainants complain that they have been dealt with by the Respondent contrary to the pro­visions of section 68 ..." (emphasis added). The complainants later asked that 3 named persons be added as complainants. That would have been quite unnecessary if this were from the outset a pro­ceeding concerned with vindicating the rights of all victims of the wrongdoing complained of by the complainants. If the 26 complainants were authorized to make a complaint on behalf of any other employees, they did not do so and gave no notice that they intended to do so. Those other employ­ees were not grievors in this proceeding. We would not add them as grievors at this stage of the proceedings except with the consent of the other parties. There is no suggestion that the other par­ties consent.

20. We do not accept the proposition that it is any part of the Board's function in dealing with a complaint under section 89 to award damages to persons on whose behalf no complaint has been made, anymore than it would be part of the Board's function to determine as against such persons that they are not entitled to damages