[1991] OLRB Rep. February 278
1547-90-U Christopher Topple, Complainant v. The International Union, United Plant Guard Workers of America Local 1962, Respondent v. General Motors of Canada, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair.
DECISION OF THE BOARD; February 19, 1991
- By letter dated and faxed to the Board on February 13, 1991, the complainant writes as follows:
On the previous day of the hearing, specifically, on November 27, 1990, Vice-Chair Surdykowski rendered an oral decision pertaining to the structure in which the hearing was to proceed. I recall that he stated that that decision of the Board would be forthcoming in writing.
As I have not received this decision to this date, I would like to request of the Board to have it sent out. Thank you.
Yours very truly,
"Chris Topple"
I assume that the oral decision to which the complainant refers in his letter was the ruling given with respect to the motions by the respondent and the intervener that the complaint should be dismissed without a hearing, it is true that I indicated that I would put my ruling into writing. However, I saw no need to and did not contemplate doing so until the hearing was completed. On the other hand, this may be as opportune time as any to do so.
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that the respondent trade union has failed to represent him fairly, contrary to section 68 of the Act. At the hearing convened on November 27, 1990, the respondent and the intervener employer moved that the Board dismiss the complaint without a hearing on the basis that in pleading the particulars contained in his October 26, 1990 letter the complainant had improperly attempted to expand his complaint and that the particulars properly pleaded do not reveal a prima facie case for either the complaint or the relief requested.
Upon hearing the representations of the parties, I dismissed the motions to dismiss the complaint. However, I also ruled that certain portions of the complaint had not been properly particularized or were not relevant to it, and I therefore struck these from the complaint and ruled that the hearing of it would be restricted to those parts of the complaint which had been properly particularized. The following is an edited version of the oral reasons I gave in that respect at the time.
Previous decisions of the Board (differently constituted) in this matter, among other things, directed the complainant to provide particulars of his complaint while, at the same time, dismissing a previous motion to dismiss it for failing to reveal a prima facie case. Read together, these determinations are not, in the circumstances, inconsistent.
1 was satisfied that the particulars provided by the complainant in his October 26, 1990 letter did expand the complaint beyond what was originally pleaded. However, I perceived no prejudice which might result if the expanded complaint was allowed to proceed. In the circumstances, and having regard to the need to have labour relations disputes resolved as quickly and comprehensively as possible, I was satisfied that it was appropriate for me to consider the expanded complaint.
However, the sufficiency of the complainant's particulars was another matter. Section 72 of the Board's Rules of Procedure and section 8 of the Statutory Powers Procedure Act require a party alleging improper conduct to provide particulars of its allegations to the party alleged to have acted improperly. As the Board noted in Pebra Peterborough Inc., [1987] OLRB Rep. March 421:
3... .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.
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.
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.
(See also Wilf McIntyre (sometimes referred to as Gravel & Lake Services Limited,) [1990] OLRB Rep. Oct. 1052 at paragraphs 11 and 12).
It is no answer to a request for particulars or a direction that particulars be provided to say that the other party (or parties) is (or are) aware of the material facts. They must be pleaded for the reasons given in Pebra Peterborough Inc., supra. In addition, while there is a distinction between facts and evidence, and evidence need not be pleaded, a material fact must be pleaded even if it is also evidence.
In this case, the complainant's particulars contain many of his conclusions rather than facts and are sometimes otherwise vague. For example, it is not sufficient to plead that "multiple incidents" indicate that the respondent had acted improperly without identifying what these incidents were, when and where they took place and who was involved. Similarly, the complainant's references to "repeated conflict" between the respondent and himself, the "collusion" alleged between the "international union" and the intervener and the "history" of the complainant's relationship with the respondent have not been properly particularized. Further, I was not satisfied that the reference by the complainant who alleged "coercive effort" of an unidentified Board "official" have either been properly particularized or are relevant to this complaint. I saw no connection between that allegation and the respondent. I therefore ordered that all of these allegations be struck from the complaint.
I was not, however, prepared to dismiss the complaint entirely. In its expanded form, I understand the essence of the complaint to be that the respondent acted improperly in representing him with respect to the termination of his employment by the intervener in that it selected an arbitrator, supplied counsel for the arbitration, instructed counsel, and decided to not seek judicial review of the arbitrator's decision on the basis of improper considerations. I was satisfied that the complaint could proceed, as pleaded, in that respect.
As I emphasized in my oral ruling, what is under scrutiny here is the representation of the complainant by the respondent with respect to his discharge by the intervener. The only breach of the Act alleged is of section 68. An employer has no obligations under section 68. Accordingly, an employer, in this case the intervener, cannot be found to be in breach of it. It is the trade union (in this case the respondent) which is the exclusive bargaining agent and representative of the bargaining unit employees which is obliged to represent the employees in the bargaining unit fairly; that is, in a manner which is not arbitrary, discriminatory or in bad faith. An employer can be a proper party for the purpose of a complaint which alleges a breach of section 68 if the remedy requested includes relief which might affect it.
The Board has no jurisdiction to overturn, vary or otherwise sit in review of the arbitrator's decision with respect to the complainant's grievance (see Re Windsor Western Hospital Centre Inc. and Mordowanec et al., 1986 CanLII 2635 (ON HCJ), [1986] 56 O.R. (2d) 297 (Div. Crt.)). Further, the Board has held that honest mistakes or errors in judgement will not generally constitute a breach of the duty of fair representation imposed by section 68 (see, for example, Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417, Canadian Union of Public Employees, Local 1000 - Ontario Hydro Employees Union (sometimes cited as Walter Princesdomu) [1975] OLRB Rep. May 444). However, a trade union is properly held responsible for its improper conduct. It may be that a trade union will not necessarily be held responsible for every improper act of its agents, but it is difficult to understand why that should be so as a matter of general principle, since a trade union can only act through such agents.
In complaints alleging a breach of section 68, the Board is concerned with the nature and quality of the trade unions representation of the complainant. That concern extends to and includes a trade union's conduct in all representation matters, including, arguably, its conduct and decisions prior to, in, and subsequent to an arbitration proceeding. In Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121 the Board held that it should only dismiss a complaint for failing to disclose a prima facie case or there is no reasonable (in the sense of "real") prospect that the complaint can succeed (see also J. Pavia Foods Limited. [1985] OLRB Rep. May 690); that is, in the clearest of cases. I agree. I was not satisfied that this is one of those cases.
The complainant seeks reinstatement to his employment with the intervener together with full compensation for lost wages and benefits or, in the alternative, damages. For the reasons given above, I was satisfied that I cannot, in these circumstances, order that the complainant be reinstated in his employment with the intervener and the complainant's request in that respect was also struck.
Because of the arguments advanced on the motions, I found it appropriate to specifically mention that nothing in my ruling should be taken to. mean that the duty of fair representation either does or does not extend to the making of an application for judicial review, either generally or specifically in this case. It would not be appropriate to determine that question at a preliminary stage and, in any event, the complaint that is now claimed is not limited to that issue.