[1989] OLRB Rep. February 112
1036-87-U Mark Carter and Brad Carter, Complainants v. Sheet Metal Workers' International Association, Local 539, Respondent v. Imperial Insulation & Roofing (1982) Limited, Intervener
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: Blake Morrison for the complainants; Bernard Fishbein and Len Dicker for the respondent; Bruce Binning for the intervener.
DECISION OF THE BOARD; February 20, 1989
I
1This is a complaint under section 89 of the Labour Relations Act alleging that the respondent ("the union") has contravened section 68 of the Act. Section 68 reads as follows:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The complainants contend that the union contravened section 68 when it settled a grievance on terms which the complainants consider unsatisfactory.
2A hearing in this matter was held in Toronto on January 9, 1989. On the agreement of the parties, the hearing was confined to a consideration of what was characterized as a "preliminary issue"; namely, whether the Board should exercise its discretion under section 89 not to inquire into this matter because of the nature of the allegations, the relief sought, and the delay in launching a complaint in this forum. The company ("Imperial") was added as a party since it would be affected by the remedy sought by the complainants. The complainant Greg Carter advised the Board that he no longer wished to pursue his allegations, and, accordingly, his name has been deleted from the style of cause.
3In order to appreciate the issues before me at this stage, it is necessary to sketch in some of the background. The facts are not in dispute and will be reviewed in approximate chronological order.
II
4The company, as its name suggests, is engaged in the insulation, roofing and waterproofing business. The union represents tradesmen performing such work. The complainants are employees of the company and members of the union. There are about a dozen other employees who would be affected by the remedy which the complainants seek.
5In or about February 1986, after some investigation, the union concluded that the company was disregarding a number of terms of the collective agreement by which it was bound. The agreement in question is not, nominally, between the union and Imperial. It is between the Roofing Employer Bargaining Agency of the Ontario Industrial Roofing Contractors' Association and the Built-Up Roofers Damp and Waterproofers Section of the Ontario Sheet Metal Workers' Conference of the Sheet Metal Workers International Association. However the union's position was that Imperial was bound by this agreement and by its predecessors.
6It is unnecessary to set out in detail the extent of the alleged employer violations of the collective agreement. It suffices to say that, in the union's submission, the company had totally disregarded, or only sporadically applied, numerous terms of the agreement respecting: the classification and use of union members; the employment of subcontractors; the payment of hourly rates, overtime rates, vacation pay and statutory holiday pay; the payment of premium rates or allowances for lunch breaks, weekend work, days lost through inclement weather, and so on. In short, the union was asserting multiple violations of the collective agreement which might, if proved, involve significant financial liability. I use the term "if proved" because, according to the complainants, the employees were not even aware of the alleged breaches of the collective agreement until late 1985, so that it might have been very difficult for the employee complement to reconstruct the pattern of wages, benefits, special allowances and payments to which they would have been entitled had the terms of the collective agreement been faithfully followed. In any event, the union filed what was described before me as a "kitchen sink" policy grievance on behalf of those employees, asserting multiple violations of the collective agreement and demanding compensation.
7In accordance with section 124 of the Labour Relations Act the union's grievance was brought before the Labour Relations Board. As is often the case, the parties met prior to any scheduled hearing to explore the possibility of resolving their dispute without resort to what would necessarily be protracted and expensive litigation.
8From the union's perspective, the company had been disregarding the terms of the collective agreement to the detriment of its members. But the company was not without arguments of its own. The company's position was that the union was estopped by is conduct from relying upon the strict enforcement of the terms of the collective agreement. Not only had there been acquiescence, for some time, in the manner in which the agreement was being applied, but, in addition, the company asserted that there had been a representation from a former business agent that, because of the company's economic situation, it would be granted some relief from strict adherence to the contract terms. This, the company argued, not only fed the estoppel argument but would permit the company to rely upon a so-called "hardship clause" which allowed firms in financial difficulty, or difficult competitive circumstances, to operate at less than the stipulated terms and conditions of employment.
9The company also took the position that at least some of the work in question was not "construction work" at all, but rather "maintenance" and therefore both beyond the terms of the collective agreement and beyond the jurisdiction of the Board to consider under section 124 of the Act. The company asserted that insofar as the employees were engaged in these "non-construction" activities, they had no claim at all, and certainly not one which could be pursued before the Board under section 124 of the Act. The company also pointed out that, in accordance with the terms of the agreement, an employee had only two working days to complain that s/he was being improperly paid or otherwise dealt with contrary to the terms of the collective agreement. None of the employees had ever complained about a shortfall in their pay and, in the company's submission, it was too late to do so now. An arbitrator - be it the Board or someone privately selected -could not simply "roll back the clock" as the union submitted should be done.
10Finally, from the union perspective, there was some residual doubt about whether the union would be able to satisfactorily prove the document tying the company in to the above-mentioned collective agreement. If the union failed on this point, the grievance would not only be dismissed, on its merits, but bargaining rights would be erased as well. Obviously, counsel for the union did not share his concern with his employer counterpart, but it remained a potential difficulty.
11In summary, then, whatever the "justice" or legal validity of the union/employee position, the path of litigation was likely to be a long and costly one, with results that were problematic and unpredictable. While it may seem unfair that massive violations of a collective agreement are more difficult to sort out, prove, and remedy than simple ones, that is an unfortunate collective bargaining reality.
12The hearings before the Board were scheduled to begin on June 4, 1986. In May 1986, however, the union and employer reached a settlement of the matters in dispute. That settlement included a formal acknowledgment that the company was bound by the collective agreement and would thereafter adhere to its terms, and the payment of $10,000.00 for distribution among the company's employees. This settlement was made subject to ratification by the employees potentially affected by it.
13A meeting to consider the proposed settlement was held on June 16, 1987. Counsel for the union was present to explain the legal and tactical situation, the issues involved, and the likelihood of success. A vote was taken. Fourteen members voted in favour of the proposed settlement. Four voted against. Two of those objectors are the complainants in this matter. It should be noted that even before the meeting the complainants had taken legal advice as to their position and the course(s) of action open to them if the settlement was accepted by the union and their fellow employees.
14Since more than 75% of the employees had voted in favour of the proposed settlement, the union decided to accept it. Following the execution of formal minutes of settlement, the monies mentioned were paid and distributed. There is no allegation that, thereafter, the company did not adhere to its part of the bargain. The complainants did not accept their share of the compensation fund.
15On June 20, 1986, in accordance with the terms of the above-mentioned settlement, the trade union requested leave to withdraw its policy grievance. By decision dated June 25, 1986 the Board granted that request. Shortly thereafter counsel for the trade union explained the situation to counsel for the complainants and sent some documents which were requested. However, neither Mark Carter nor Brad Carter made any immediate complaint against the trade union. They did not take the money available to them pursuant to the settlement but neither did they move, in this forum, to challenge its validity. Instead, on the advice of their counsel, they filed a civil action against the company for an accounting and the payment of wages owing.
16On September 25, 1986 the company moved, in Court, for a dismissal of the complainants' action on the grounds that there was no legal basis for it. By decision dated November 25, 1986, a judge of the Supreme Court of Ontario concluded that the action should be dismissed. While the reasoning of the learned Judge was not put before me, he presumably ruled, (in accordance with the well-established law in Ontario), that there could be no action by an individual employee based upon disputed terms of a collective agreement (see generally: G. W. Adams, Q.C. Canadian Labour Law. A Comprehensive Text (1985) Canada Law Book).
17About a week later, in a letter dated December 5, 1986, the complainants' solicitors expressed the opinion that the complainants should consider launching a proceeding before this Board alleging that the union had breached its statutory duty of fair representation. I observe that such possibility would or should have occurred to the complainants, if properly advised, in May or June 1986 when the settlement was concluded and they were already receiving legal advice. But it was not until July 1987 that the complainants' solicitors filed this complaint, alerting the trade union and employer, for the first time, that the settlement reached 13 months before was now under attack.
18Counsel for the complainants contends that in the period December 1986 to July 1987 there may have been some misunderstanding" about the complainants' desire to proceed (Greg Carter ultimately decided not to do so). The fact remains however, that there was a delay of almost 13 months before the respondent union was put on notice that its conduct was said to be illegal, by which time the grievance had long since been put to rest, monies had been distributed to other employees, the issue of bargaining rights had been acknowledged, and a new collective agreement had been negotiated. The complainants' refusal to accept their share of the settlement does not signal any assertion, on their part, that their bargaining agent has contravened the Labour Relations Act. At most, it indicates a desire not to prejudice the civil action which they then believed was open to them.
19There follows a period in which the Board sought to accommodate the hearing schedules of the parties' solicitors. Two scheduled hearing dates were adjourned on consent. The second adjournment was coupled with a request that no hearing date be set except in consultation with counsel and the advice that the complainants and their counsel would not be available until the new year (1988). In early January the Registrar of the Board wrote to the parties asking for information on dates when they would be available. The trade union submitted 14 such dates, the company 5, and the complainants 4 consecutive days in March, but only those. On January 26, 1988 the Registrar wrote to the parties to advise that there was no overlap of the dates when they were available and urged them to seek March dates which would be agreeable and which would then be confirmed. There were none; nor was there any communication from any of the parties for months. For whatever reason, no one seemed anxious to proceed with this matter. It was only after a letter from the Deputy Registrar of November 4, 1988 that the complainants' counsel indicated that he was instructed to proceed. A hearing day scheduled for December 20, 1988 was adjourned, on consent, and, as I have already noted, the matter came on for hearing before the Board on January 9, 1989.
20Having set out the way in which this matter developed, it may be useful to record what the complainants seek as a remedy. The complainants assert that the settlement was improvident and should now be set aside. They assert that the settlement process undertaken by the union and confirmed by their fellow employees was in fact, "arbitrary", "discriminatory" or influenced by "bad faith". The complainants demand that the trade union file a new grievance on their behalf claiming compensation back to 1981 - that is, not only under the 1984-86 agreement, but also under two previous collective agreements. The complainants urge the Board to set aside or nullify any time limits or other legal impediments to the processing of such new grievance, and not to permit any settlement of such grievance without their specific consent. It would follow, of course, that this proposed remedy might well require restitution of any monies paid to the workers pursuant to the settlement reached in 1986, and, as well, restoration of the company to its previous legal position in respect of any defences which might have been open to it. As before, the onus would be upon the grievors to establish and prove all elements of their claim under whatever collective agreement it might be brought. I make no comment, at this stage, about whether, as a remedy in an unfair representation complaint, a complainant can successfully assert a right to veto what might otherwise be an objectively reasonable settlement; (however, in this regard, see Jean Liebman, [1987] OLRB Rep. July 1011).
21The argument of the union (supported by the company) is that it is now too late to unravel the settlement fashioned by the bargaining parties in 1986 and ratified by the overwhelming majority of the employees in the bargaining unit. The union notes that the complainants had counsel as early as June 1986, before the ratification vote, but no allegation against the union or challenge to the settlement terms was mounted until some 14 months later. The unton was not a party to the unsuccessful civil action, and could not reasonably foresee that its conduct respecting the ratified settlement would be challenged as a breach of section 68 of the Act. Nor could the company reasonably anticipate that, having established that the civil action was without legal foundation, its position would be challenged, indirectly, through the medium of an alleged violation of section 68 of the Act.
22The grievance under review is now three years old. The settlement ratified by the overwhelming majority of the employees is now two and a half years old. Yet the complainants seek to extend that grievance, with its attendant legal and evidentiary difficulties, back to 1981 - based ultimately on collective agreements which all provide that alleged violations must be raised within two days of the event giving rise to the grievance. Such time limits are obviously not binding upon me or an arbitrator (see section 44(6) of the Act), but in the fluid employment and economic context of the construction industry, it is significant that both the trade union and employer have agreed that violations of the collective agreement should be dealt with expeditiously. That policy thrust is also echoed in section 124 of the Labour Relations Act which requires the Board to hold a hearing within 14 days of the filing of a construction industry grievance.
23Here the new grievance, sought by the complainants by way of remedy, is based upon events going back to 1981, and relies upon at least two prior collective agreements which have long since expired. It would necessarily raise all of the legal and evidentiary problems evident in the 1986 grievance, together with any additional issues which might be associated with the complainants' claims for the period 1981-86 under the two previous collective agreements. From the company's perspective, if the complainants' claim before me is successful, and the settlement is set aside, it will be free not only to claim recovery of any monies paid pursuant to that settlement but will also feel free to assert all of the defences otherwise available to it and to put the union, the complainants, and their fellow employees to the strict proof of any sums to which they might claim to be entitled. To the extent that the work in question, over the years, is not construction work, or is not covered by the collective agreement, or the employees cannot prove their entitlement to payments provided by the collective agreement, or there is an estoppel, or the claim cannot be maintained in respect of agreements long expired, or there were no bargaining rights in the first place, or the claim is barred by the time limits in the collective agreement itself, there would be no recovery at all, or only limited recovery payable only after months or years of litigation. In the meantime, there would be significant disruption to the parties ongoing bargaining relationship and both the rights and expectations of the other employees in the bargaining unit.
24Section 89 of the Act clearly gives the Board a discretion whether or not to inquire into an unfair labour practice complaint (see Re Dhanota and International Union United Automobile Aerospace and Agricultural Implement Workers of America (U.A. W.), Local No. 1285; and Sheller-Globe of Canada Ltd., 1983 CanLII 1655 (ON HCJ), 42 O.R. (2d) 73 (Ont. Div. Ct.)); and in quite a number of cases the Board has declined to inquire into complaints which were not filed in a timely fashion. Here I will refer to only one. In Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420 the Board made these observations:
It is by now almost a truism that time is of the essence in labour relation matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it -including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have~ to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [19661 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it, when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
[To the same effect see also, for example: Sheller-Globe Ltd., [1982] OLRB Rep. Jan. 113; Waterloo Metal Stampings Ltd., [1984] OLRB Rep. Jan. 156; Conestoga College of Applied Arts & Technology, [1983] OLRB Rep. June 882; Nelson Quarry, [1983] OLRB Rep. Sept. 1531; Tecumseh Products of Canada Limited, [1985] OLRB Rep. Jan. 123; Norman F. Stroesser, [1986] OLRB Rep. May 684; and Michael Baranowski, [1987] OLRB Rep. May 645.] The fact that a complainant may be acting upon his solicitor's advice in pursuing other remedies against other parties in other forums may explain a tardy complaint under the Labour Relations Act but does not necessarily justify it - particularly when the complainant, being unsuccessful in those other forums, changes "targets" and seeks relief under the Act against a new party whose behaviour was previously not the subject of complaint. Indeed, from the perspective of the new respondent, it matters little that the reason for the delay is that the complainant was unsuccessfully pursuing legal remedies against someone else.
25In the instant case, the validity, application, and alleged violations of the collective agreement were all settled in June 1986 to the apparent satisfaction of the vast majority of the company's employees. While the complainants were dissatisfied with that settlement, they took no action calling the union's conduct into question until some 13 months later; moreover, from the outset, they were acting with legal advice, and their refusal to take their share of the settlement monies is as consistent with protecting their position in the civil action as any other explanation. Certainly there was no express attack on the union's judgement in settling the grievance, and even when their solicitors specifically noted the possibility of action against the trade union (which presumably they should have raised before-at least as a possibility), there was a further seven months delay before this complaint was actually filed. Meanwhile, the union, the employer and the other employees in the bargaining unit were all operating on the assumption that the grievance had been settled, the collective agreement was now binding in accordance with its terms, and, in fact, a new agreement for the period 1986-88 was negotiated and applied. By this complaint, the grievors seek not only to overturn the settlement and reopen all previously-settled issues, including those concerning estoppel, the scope of the agreement, and bargaining rights, but also to pursue their claim back to 1981 under collective agreements long expired (assuming that they were applicable in the first place). And this claim is made in the context of the construction industry where the bargaining parties and the Legislature have both recognized the importance of resolving disputes quickly. Finally, while the nominal respondent in this matter is the trade union, there is little doubt that the real target is the company, and section 68 became the legal vehicle of choice only after the failure of the complainants' civil action - and even then only after another delay of some months.
26In my view the policy considerations enunciated in the Mississauga case are applicable here. Had the complainants sought to attack the union's position and overturn the settlement at the time it was made, their allegations might have warranted consideration on the merits (although even then, they would have to show that the union's position, ratified by the employees affected by it, was "arbitrary", "discriminatory", or "in bad faith"). Here, however, there is a delay of 13 months during which time the settlement has been implemented, the collective bargaining relationship has continued based upon the understandings and undertakings of June 1986, and a new collective agreement has been entered into. I see no reason, at this stage, to inquire into a tardy complaint reopening matters long settled and potentially putting in jeopardy, for the complainants and others, the very bargaining rights upon which they must ultimately rely for their claim to be successful. Nor, at this stage, would it make it any "labour relations sense" to canvass legal rights and obligations, including estoppel issues, under collective agreements long expired - assuming, without finding, that the Board or an arbitrator was even entitled to do that.
27For the foregoing reasons the Board exercises its discretion not to inquire further into this complaint. The complaint is therefore dismissed.