Ontario Labour Relations Board

[1989] OLRB Rep. September 932

0147-89-U Paul Balkos, Complainant v. Lawson Packaging Toronto, A Division of the Lawson Mardon Group Limited and Graphic Communications International Union, Local 500M, Respondents

BEFORE: Patricia Hughes, Vice-Chair.

APPEARANCES: Paul Balkos on his own behalf; D. Francis, D. Larry Mogg and P. Jones for Lawson Packaging Toronto, A Division of the Lawson Mardon Group Limited; Michael Church, Jim Cowan and Ron Duquette for Graphic Communications International Union, Local 500M.

DECISION OF THE BOARD; September 21, 1989

1. Paul Balkos was employed by the respondent employer, Lawson Packaging Toronto ("Lawson Packaging" or "the employer"), from June 22, 1984 or thereabouts until April 8, 1988 and again from August 15, 1988 until March 3, 1989. He claims that the period between April and August 1988 was a lay-off but that the company, in laying him off in March 1989, ignored his seniority. Seeking to have his seniority reinstated, he went to his union, the respondent Graphic Communications International Union, Local 500M ("the union" or "Local 500M"), and when the

union failed, in his view, to represent him adequately, he filed this complaint alleging that the union had breached section 68 of the Labour Relations Act ("the Act").

2. In his complaint, Mr. Balkos referred to "finding out company paid no dues and benefits after returning from 8/15/88 - 3/3/89"[sic]. By the time the hearing began, this issue appar­ently formed no part of the complaint and I make no further reference to it (with one exception on the question of whether Mr. Balkos quit or was laid off in 1988).

3. The union and the employer initially sought to have the complaint dismissed as untimely. Mr. Balkos did not enlist the union's help until March 1989 (the grievance was filed March 6, 1989, seeking the return of Mr. Balkos' seniority). At this point in the proceedings, Mr. Balkos said that he had a conversation with Max Avery, the day shift supervisor in finishing and his supervisor at Lawson Packaging, in March 1989 about seniority; that this was obviously an error did not become completely clear until some prolonged questioning of Mr. Balkos in cross-examina­tion and it was revealed that the conversation definitely took place in August 1988. The complaint was filed on April 18, 1989, eight months after he was first advised there might be a problem with his seniority and one month after the union's involvement in the matter. Even at its longest, the length of delay is insufficient to dismiss the complaint as untimely as a preliminary matter.

4. After Mr. Balkos had completed his evidence, counsel for the union moved for a non-suit. The employer did not join in the motion for a non-suit, however. Counsel for the union con­tended that I should not put him to his election because Mr. Balkos' case was so weak that it was in the interests of all involved to bring a quick end to the proceedings. The decision to put counsel to his or election is within the discretion of the Board. In the usual case, for example, it may be con­sidered preferable to ensure that the full case which is to be adduced by any party is in before mak­ing a determination on whether the complainant has made out his or her case. That will not be so where the respondent may subsequently call evidence; in such cases, the motion is in effect a request to let the respondent know just how things stand at that stage of the proceedings. To not require the respondent to make its election is akin to treating the motion as a preliminary motion that the complainant has not made out a prima facie case, a motion brought before any evidence is led. In addition, the "unfairness" in allowing the respondent to argue its case twice underlies put­ting the respondent to its election. There is also some concern, albeit not a predominant one in my view, that not requiring the respondent to decide how serious it is about its motion will encourage delays in the hearing through non-suit motions not attended by the certainty there will not be more evidence adduced. I indicated that I would put counsel to his election.

5. It then became relevant that counsel for the employer had not joined in the motion and had stated quite vigorously that he intended to call evidence. Had I found in favour of the union's motion and dismissed the complaint, the employer would, of course, be calling no evidence; but if I dismissed the motion, the employer could still call evidence: nothing could prevent its calling union officials as well as other witnesses. In section 68 cases, the employer and the union share a similar interest in each showing that not only itself, but the other of them has conducted itself appropriately. This is the reality of section 68 complaints even though it is the union's conduct which is primarily under analysis. From another perspective, the complainant is entitled to use any evidence called by either respondent to help make his or her case. Thus where there is evidence to be called, it is premature to rule on the motion until that evidence has been adduced. It would make putting the union to its election a futile requirement when there is another party quite capa­ble and on the face of it, quite willing, to put in all the relevant evidence in any case. Since counsel for the employer desired to put the employer's version of the matter before me and therefore did not join in the motion for a non-suit, I refused to entertain the motion. In my view, reserving on the motion has no practical purpose since by that pointy the evidence and submissions would have been complete and one would be assessing the matter as in the usual course.

6. On Mr. Balkos' testimony, he desired to arrange his employment circumstances in order to reduce the financial obligations he might incur towards his ex-wife. Apparently, he was in the midst of legal procedures in that regard in the spring of 1988. Put simply, he wanted to ensure that he would show little income for that period, he says through lay-off, the employer says (as does the union) through quitting his job on April 8, 1988. In any event, he returned to work on August 15, 1988 and began his seniority as of that date; thus when Lawson Packaging laid off employees in March 1989, Mr. Balkos was on the lay-off list. He complained, arguing his seniority went back to 1984 and sought assistance from the union. The union filed a grievance on his behalf and took it to the third step of the grievance procedure. At the second step meeting, I find, despite Mr. Balkos' denial, that he agreed that he had quit. Prior to the third step meeting, James Cowan, a vice-president of Local SOOM, explained to Mr. Balkos that he did not have a case and that he should accept a monetary package offered by the employer. Mr. Balkos stormed out of the meet­ing and the union withdrew the grievance.

7. I dismissed the complaint orally with reasons as set out below.

8. The version of the relevant events Mr. Balkos wanted me to accept was as follows: that he and the company in effect conspired to arrange his employment circumstances such as to deceive his ex-wife (and perhaps the courts) about his level of income by Mr. Balkos' going on lay­off out of seniority; that the employer subsequently reneged on that arrangement by treating him as a new employee at least as far as seniority was concerned and, as a consequence, laying him off in March 1989 when he would not have been laid off if he had retained his seniority from 1984; and that when he asked the union to help him enforce this arrangement with the employer, the union failed to do so to his satisfaction or in effect, conspired with the employer to renege on the "deal" originally made between the employer and Mr. Balkos.

9. Whether the union would or could be found lax in its duty under section 68 for failing to enforce such an arrangement is not something I have to decide since I reject Mr. Balkos' version of the events of the spring of 1988. I do not accept that the employer laid Mr. Balkos off in order to assist him in his marital difficulties. The evidence before me is that he was paid vacation pay and that when he returned he was given a seniority date of August 15, 1988. It is common ground that in August 1988, Mr. Avery said in a telephone conversation that Mr. Balkos would come back as a new employee or that he might lose his seniority. (I had no evidence as to whether he was put on probation for three months or was required to pay union dues for that time.) His Record of Employment does show he was laid off for "shortage of work" rather than that he quit. I accept that that was the result of Alberta Smith's, the payroll clerk at Lawson Packaging, wanting to assist Mr. Balkos in receiving unemployment insurance benefits. Mr. Balkos was on notice that his seniority was a problem as of August 1988 but did nothing until he was laid off in March 1989. At that time, the union helped him until he stormed out of the meeting.

10. Mr. Balkos could offer no reason why the union did not proceed further other than the reason given to him by Mr. Cowan; he made no allegation that could be interpreted as an allega­tion that the union had acted arbitrarily or in bad faith or had discriminated against him on any basis. When I asked him if he thought the union "had anything against him", he said "I don't know, no".

11. Therefore, I dismiss the complaint.