The Coalition of Laid-off Workers v. The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada

[1990] OLRB Rep. February 129

2895-88-U The Coalition of Laid-off Workers, Ontario, Canada. Hereinafter known as the C.L.W., Complainant v. The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada. Hereinafter known as the C.A.W., Locals 439 and 458 of the C.A.W., Respondents v. Varity Corporation, Intervener

BEFORE: Robert Herman, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

APPEARANCES: Karl Ellison and David Jack for the applicant; Len MacLean, Jack Tubman, Mike Merone and Dan Webster Jr. for the respondent; C. G. Riggs and E. D. Ludlow for the intervener.

DECISION OF THE BOARD; February 28, 1990

1. The Coalition of Laid-off Workers (the "C.L.W.") is a group that was formed to represent approximately 125 former employees of Massey-Ferguson who were terminated or permanently laid off when several plants were closed by the company. The intervener, Varity Corporation, was, prior to June, 1986, Massey-Ferguson Limited. On behalf of the individuals named in the complaint, the complainant C.L.W. alleges that the respondents have breached section 50, 52(5), and 68 of the Labour Relations Act.

2. During the first several days of this proceeding, the Board made various oral rulings, some of which we set out herewith in writing.

3. The Board ruled that the C.L.W. is not itself an entity that is a proper complainant in this proceeding. It is not an entity that would entitle it, in its own name, to launch and pursue a complaint of the instant nature. Nevertheless, the Board will continue where appropriate to describe the complaint with reference to the C.L.W. as complainant, for ease of reference purposes.

4. The proper complainants are those individuals listed in the initial complaint, and those individuals subsequently added or removed as complainants by various correspondence received by the Board prior to January 30, 1990. Each of those individuals is in his or her own right a proper complainant to this proceeding. Each of them, with the exceptions noted below, has signed an authorization authorizing the C.L.W. to represent him or her in these proceedings. Those authorizations are sufficient authority for the C.L.W. to speak on their behalf. Numerous individuals, subsequent to their signing authorizations and being listed as complainants have indicated that they no longer wish the C.L.W. to represent them nor do they wish to be part of this complaint. Those individuals are hereby dropped as complainants. There are three individuals listed as complainants on the complaint form who have not signed authorizations for the C.L.W. to act on their behalf, nor have they in any way indicated that they wish to be part of this complaint. Those three individuals, Stan Pycherek, Steve Raz, and Sylvester Walters, are therefore not part of this complaint and their names will be deleted as complainants.

5. Finally, with respect to the issue of the proper complainants in this proceeding, at the conclusion of the last day of hearing on January 30, 1990, on the agreement of the parties, the Board ruled that five more individuals would be added as complainants to this proceeding. Four of those individuals are listed in a letter from Mr. Ellison dated January 29, 1990, addressed to the Registrar of the Board, and the fifth individual is Victor S. Andino. The Board also ruled, on consent, that no more individuals can or will be added as complainants to this proceeding. Individuals not yet named as complainants cannot now become part of this proceeding. On behalf of the complainants who were added on January 26th or 30th, Mr. Ellison agreed that they would be bound by all of the rulings made by the Board up to that stage of the proceeding, which includes all the rulings reflected in this decision.

6. We turn next to deal with some of the preliminary objections raised by the respondent unions. The Board dismissed the complaint insofar as it sought to rely upon the provisions of section 50 of the Labour Relations Act. Section 50 reads as follows:

50. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

This is not a section which can be breached in the context alleged by the complainants. It is not alleged that the respondents conducted themselves as if no collective agreement existed; rather, the allegation is that particular articles of the agreement were breached by the C.A.W. Section 50 is not addressed to this type of allegation. The Board was therefore satisfied that the complaint ought to be dismissed with respect to section 50 of the Act.

7. Similarly, with respect to section 52(5) of the Act, there was nothing in the complaint which suggested how section 52(5) had been breached or suggested how it might have been breached. Section 52(5) reads as follows:

52. (5) Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.

It was not apparent from the complaint or submissions that section 52(5) could be breached in the context alleged, and the complaint was therefore dismissed in this respect.

8. In dismissing the complaint with respect to sections 50 and 52(5) the Board commented that the Board was not suggesting that the matters complained of could not be raised, only that they did not constitute, even arguably, breaches of sections 50 or 52(5) of the Act.

9. The remaining aspect of this complaint is the allegation that section 68 of the Act has been breached by the respondent unions. Section 68 reads as follows:

68. 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 respondents first argue that the Board is without jurisdiction under section 68 in this complaint on the grounds that the complaint is really a dispute over entitlement to moneys under the Employment Standards Act, and the remedies sought are found exclusively under that Act. They submit that the Board has no jurisdiction under the Employment Standards Act. The Board dismissed this objection. The case before the Board is an allegation that section 68 of the Labour Relations Act has been breached. To resolve this claim will not require the Board to make findings under the Employment Standards Act or to exercise any of the jurisdiction given elsewhere under that Act. Rather, section 68 is alleged to have been breached and the Board is to make findings pursuant to its clear and exclusive jurisdiction under section 68. Accordingly, the Board declined to dismiss the complaint on that ground.

10. The respondents next argued that the provisions of section 68 of the Act do not impose any duty upon their conduct in the circumstances. They submitted that the representation by the C.A.W. about which complaint is made was representation solely with respect to the rights of the individual complainants pursuant to the Employment Standards Act. The respondents assert that a union is not bound by the duty imposed in section 68 of the Act when it assists employees, or former employees, with respect to their entitlement under the Employment Standards Act. The respondents therefore assert, since no duty lies under section 68, there can be no breach and the complaint ought to be dismissed. See Lopez, [1989] OLRB Rep. May 464, in this regard. In dismissing this objection, the Board notes that the respondents had indicated they would be objecting to the adequacy of the particulars and that objection remained to be considered. The nature of the complaint appeared, at this early stage, not only to be a complaint with respect to the conduct of the C.A.W. in negotiating for the complainants the sums of moneys under the Employment Standards Act they were or should have been entitled to, but as well complaint about the conduct of the C.A.W. in representing the complainants when they were permanently laid off. The duty pursuant to section 68 of the Act does clearly apply in these circumstances.

11. It appeared to be common ground that two groups (at least) of employees received settlements pursuant to claims under the Employment Standards Act. One group of employees apparently includes many of the complainants and a settlement was negotiated on their behalf by the CAW. A separate settlement was reached without CAW assistance for 5 former employees, including Hinds and Ellison. The complainants assert, amongst other things, that the settlement amounts obtained by the 5 employees on their own were greater than the amounts the CAW obtained for the individuals in the group it represented. An Award of a Referee appointed under the Employment Standards Act was filed on consent with the Board. The respondents submitted that this Award (the Picher Award) was binding on the parties and that the Board ought to apply the principle of res judicata and dismiss the instant complaint. The Board is prepared to assume, for purposes of this ruling, that the Picher Award is binding upon the parties before the Board. We assume this, rather than so find, because it is not apparent from the text of that Award that most of the parties before the Board were parties to that proceeding. The Style of Cause of that Award lists only five claimants, and does not identify as parties most of the complainants before us, nor is the C.A.W. listed as a party to that proceeding. Nevertheless, assuming that all parties before us were parties to that proceeding, the question remains of what effect to give, at this stage, to the Picher Award. In that Award, the Referee accepted the settlements reached in those proceedings. The Board will therefore treat as fact that those settlements were accepted by Referee Picher. That fact does not however speak directly to the section 68 issue before us. Reference to and reliance upon the Picher Award does not lead us to dismiss the instant proceeding at this preliminary stage.

We therefore decline to so dismiss, without prejudice to the right of any party to seek to rely upon the Picher Award at any other stage of these proceedings.

12. After delivering these rulings, the Board turned to the question of the adequacy of the particulars, and the request of the respondents that the proceeding be dismissed for want of particulars, or in the alternative, that the complainants be directed to provide further and proper particulars.

13. Rule 72 of the Board's Rules of Procedure provides as follows:

72. (1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or (b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.

(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

14. Section 8 of the Statutory Powers Procedure Act provides that:

8. Where the good character, propriety of conduct or competence of a party is an issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

15. In Pebra Peterborough Inc. [1987] OLRB Rep. March 421, the Board commented on the question of particulars:

3. Both Rule 72 of the Board's Rules of Procedure and Section 8 of the Statutory Powers Procedure Act require that particulars of allegations of misconduct be given in a timely manner to the party which is alleged to have acted improperly. This requirement is based on both legal and labour relations considerations. The legal consideration is a recognition of the rule of natural justice that a party against whom the allegations of wrongdoing are made must have sufficient notice of them to enable it to know and prepare for the case that it must meet. The labour relations consideration is that there be no prejudicial delay in the proceedings (see Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141). Where an allegation made in any document filed with the Board is not sufficiently particularized, the Board may, when requested, either strike out that allegation or direct that further particulars be provided. Further, evidence of facts or circumstances that have not been included or sufficiently particularized in a document filed with the Board may not be adduced at the hearing of the matter to which they relate except with consent of the Board and then only upon such terms as the Board considers appropriate.

4. On the other hand, the Board's approach to "pleading" is more lenient than that of the courts. Consequently, the Board will not usually strike out an allegation unless it is so lacking in particulars or so untimely that the party whose conduct is being complained of is so prejudiced that the allegation cannot properly be entertained in light of the legal and labour relations foundation for the requirement of particulars. In the Board's view it was not appropriate to strike out any of the allegations in the intervention or subsequent correspondence. However, we did agree that further particulars were required.

5. In considering the sufficiency of allegations, the Board considers whether or not they substantially identify the offences alleged and the acts or omissions complained of; whether the information requested is really required by the party requesting it; the knowledge or availability of knowledge possessed by the parties of the alleged improprieties; whether what is being requested is really evidence rather than particulars (though particulars may reveal evidence or names of witnesses); the apparent purpose for the demand for particulars; and, the general nature and circumstances of the improprieties alleged....

16. And in Gallant Painting [1987] OLRB Rep. March 367, the Board wrote as follows:

8. There is no doubt that the applicant has not had sufficient notice of the improprieties that it is alleged to have committed. Section 72 of the Board's Rules of Procedure has a two-fold purpose and is based on both legal and industrial relations considerations. The legal consideration (which is also present in section 8 of the Statutory Powers Procedure Act) is a recognition of the rule of natural justice that anyone charged with wrongdoing should have reasonable notice of the charge made against him. The labour relations consideration is a recognition of the prejudicial effect of delay on a trade union's application for certification. Section 72 seeks to balance natural justice and the avoidance of delay in proceedings before the Board. In an application for certification it is essential that allegations of wrongdoing be made in a timely manner and with sufficient particularity so that an applicant trade union is not prejudiced either by surprise of by being forced to seek an adjournment, thereby delaying its own application (see Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141). Persons involved in proceedings before the Board have a right to appear before it with or without counsel. The Board recognizes the difficulties that persons who choose to appear without counsel may encounter and normally affords such persons a somewhat greater latitude in the manner in which they conduct their cases. However, though proceedings before the Board are less formal than those in a court of law, they are nevertheless legal proceedings which are governed by the Board's Rules and Procedures and by the rules of fairness and natural justice. Those who choose to participate in proceedings before the Board without obtaining counsel or other assistance do so at their peril. The law and the rules applicable to proceedings before the Board apply equally to all parties, whether or not they choose to retain counsel. Choosing to neither retain counsel nor otherwise inform oneself does not relieve a party of the obligation to conduct itself in accordance with the rules. Ignorance of the law excuses no one from his obligations under it.

17. The complainants indicated they were unwilling to provide particulars, largely on the basis that to do so, they felt, would be to disclose their evidence and their case to the respondents prior to the hearing. In one of the letters filed on behalf of the complainants, Mr. Ellison wrote that the necessary information would be provided through evidence at the hearing.

18. There is a difference between particulars, which we are here concerned with, and the evidence that a party intends to lead at the hearing. The particulars consist of the material (or significant) facts which a party will rely upon as constituting improper conduct under the Labour Relations Act. They are the material facts which a party alleges are true and which a party intends to seek to prove at the hearing. Not every fact will be material. For example, the colour of the hat an individual was wearing on a given day is not likely to be material or significant. In contrast, statements that an individual made to one of the parties, which statements are alleged to constitute unfair labour practices, would be material facts. To take another example, if conduct is alleged to be in breach of a section of the Act, facts describing the conduct in question would be material facts. A party against whom or against which allegations of impropriety are made in a Board proceeding (allegations of impropriety are made against the respondents) is entitled by law to be provided with a recital of the facts alleged to constitute that misconduct before the hearing commences. That party is entitled by law to be advised of these material facts, otherwise called the particulars, which the complainants allege have occurred. Disclosing particulars prior to the hearing will indeed notify the respondents of the material facts asserted against them. This is the very purpose of providing particulars.

19. Disclosure of the material facts in advance of the hearing is not the same as disclosure of the evidence. The material facts will describe the conduct in question, the acts or omissions said to be breaches of the Act. The evidence is how the complainants will attempt to prove these facts during the hearing. They may call as a witness the person alleged to have committed the improper acts and have this person directly testify about the significant events. They may call witnesses to testify who observed the acts, but did not themselves commit the improprieties. They may seek to rely on documents which somehow indicate that the acts occurred. These are only examples. There are various ways in which most material facts can be proved at a hearing. How those facts will be proved is a question of the evidence. A party is not required to disclose what its evidence will be in advance of the hearing. It is not therefore required to state (absent a Board order) who its witnesses will be, what documents it will lead in evidence, or what its witnesses will say when they testify.

20. In the instant proceeding, we were satisfied that sufficient particulars had not been provided. Although the particulars were requested in a timely fashion by the respondents, and although the complainants declined to provide them, we nevertheless decline to dismiss this proceeding. This is not a certification application or other application where the passage of time will create irreparable prejudice. The events in question appear to have taken place some time ago, and the more appropriate response in our view is to direct that sufficient particulars now be provided.

21. The complainants are hereby directed to set down in writing all the material facts upon which the complainants intend to rely in this proceeding. Without leave of the Board panel hearing this case, the complainants will not be allowed to introduce or lead evidence of any material fact or material matter which has not been set out in this written document. Rule 72(4) imposes this condition, which we repeat and affirm here to ensure there is no misunderstanding. The complainants should assume that they will not be allowed to lead evidence of material facts not so set out in this document.

22. We can provide some examples of what would constitute particulars, and which must therefore be provided. If the complainants allege that the C.A.W. or the relevant locals did not represent them properly in some respects, the complainants must set out in writing each and every such example of where they claim the C.A.W. (or the respondent locals) failed to represent them properly. Those examples must describe what the respondent did, or failed to do, that constituted breaches of section 68 of the Act. If the complainants are alleging that certain statements made to them were misrepresentations and breaches of section 68, they must set out the statements made, who made them, when they were made, and to whom they were made. If the complainants suggest that various provisions of the collective agreement were not followed by the respondents, they must set out the provisions in question or refer to the particular Article together with the material facts which the complainants argue would indicate that the respondents did not comply with the provisions in question. In summary, in documenting the facts that the complainants feel are material to this proceeding, they should be guided by the principle that they should set down any significant fact which they may want the Board to hear evidence of and rely upon in order to decide this case. The particulars should also clearly identify the particular actions, omissions, or acts of any sort by any of the respondents or their officials, agents or officers which the complainants allege constitute breaches of section 68 of the Act. In this respect, the complainants should identify the individuals by name that they claim did something that breached section 68, and the specific actions that any of the individuals might have done, or ought to have done. They should also indicate which complainants have suffered as a result of such actions and in what respect. Included in this requirement, the particulars should note how the respondents breached section 68 with respect to Mr. Hinds and Mr. Ellison, and how they have suffered some injury or harm as a result.

23. For each complainant, the particulars should indicate the key aspects of the employment history of that individual; the date they started work, the bargaining unit they were in, and the dates and circumstances under which they ceased to work for the employer. The particulars should also indicate which complainants signed an authorization for the C.A.W. to act on their behalf, or otherwise authorized the C.A.W., which complainants were covered by the settlement which the C.A.W. negotiated, and the amounts each complainant received from that settlement.

24. We note that the respondents have indicated they will argue that the Board ought to decline to inquire into this matter on the grounds of delay; that is, the events alleged to have breached section 68 occurred so long before the instant complaint was filed, the complaint ought to be dismissed without deciding whether section 68 was breached. The particulars therefore should also set out the material facts upon which the complainants intend to rely with respect to what occurred between the events said to have breached the Act (which appear to have occurred before or leading up to March, 1986) and the date that the complaint was filed, February 22, 1989.

25. The particulars directed herein shall be filed with the Board, and served by the complainants upon the other parties, no later than March 30, 1990. Failure to file the particulars by that date will result in the complaint being dealt with solely on the basis of the particulars already filed. This may well lead to dismissal of the complaint without inquiring into the merits.

26. Should any of the other parties have a dispute with respect to the sufficiency of these further particulars, they shall file with the Board, and serve upon the other parties, written submissions in that respect no later than April 13, 1990. Any such submissions should specify the precise information which a party claims must still be particularized together with all submissions a party wishes to make in support of its objection.

27. Our directions in this regard, and our prior rulings, are without prejudice to the right of the respondents or the intervener to raise an objection already dealt with, to the extent that the further particulars materially affect the prior objections or rulings.

28. The Board has still to consider certain objections not yet dealt with, including the argument that the particulars disclose no prima facie case, and that the complaint ought to be dismissed on the grounds of timeliness or delay. All parties should be prepared to deal with these matters, and any other matter relevant to the proceeding, at the next hearing day.

29. This matter is adjourned, on the basis described above, to be scheduled before the instant panel for two further hearing days, not earlier than April 20, 1990, in consultation with the parties. The parties are all agreed that such consultation should take place, and they are further agreed that the two days should be scheduled close together, but not consecutively.

30. This matter is referred to the Registrar.