[1993] OLRB Rep. August 811
3993-91-U Tim Turner, Applicant v. The Retail, Wholesale Bakery and Confectionary Workers Union, Local 461 of the R.W.D.S.U. AFL:CIO:CLC and Rick Kent, Alf Davis, Gary Sage, Ab Player, Responding Parties v. Weston Bakeries, Intervenor
BEFORE: S. Liang, Vice-Chair.
APPEARANCES: Tim Turner for the applicant; James Hayes and Robert McKay for the responding parties; Martin Addario, D. Banks and D. Graf for the intervenor.
DECISION OF THE BOARD; August 12, 1993
This is a complaint made pursuant to the provisions of section 69 of the Labour Relations Act. By decision dated July 24, 1992, I found that the union violated section 69. I directed the parties to meet to attempt to agree on an appropriate remedy. The parties failed to reach agreement and they therefore appeared before me on June 23, 1993 to present evidence and argument with respect to remedy.
My essential findings with respect to this complaint are summarized at paragraphs 17 and 18 of the previous decision:
The facts of this case are very unusual. What began as a relatively minor incident escalated over the course of several weeks until it resulted in Turner's discharge. It is a troubling case, because it appears that the ultimate conclusion, the discharge, could have been avoided. There is a striking lack of common sense on the part of all parties involved. Whatever may have been the company's legal rights (and it is not my role to determine whether the company or Turner is right as to their view of the collective agreement s guarantee of union representation), it certainly does not appear that Turner's request for a steward was so unreasonable so as to necessitate the complete stalemate that persisted over three weeks' time. Turner himself acted in a completely puzzling way. He states that he was acting on advice given by the union, and yet over the course of three meetings, with his employment clearly in jeopardy, he fails to seek the advice of the union to determine whether his understanding is in fact correct. Further, even knowing in advance of the second two meetings, he made no attempt to have a union steward attend with him at these meetings. I can only conclude that there is a measure of wilful blindness or recklessness in his conduct.
As for the union, I conclude from the evidence that it was aware of what was happening between Turner and the company, and chose not to intervene. There is evidence that Turner made Don Hall aware of the nature of the discussions he was having with the company. Turner filed two separate grievances with union stewards prior to his discharge which must have alerted the union to the nature of the ongoing dispute. Further, there is the letter from the company which urges the union to counsel Turner. On the evidence, I find it more likely than not that had the union intervened prior to the final meeting which resulted in Turner's discharge, the discharge would have been avoided. At the very least, if the union had investigated the circumstances underlying the grievances, it would have found out that Turner was relying on advice which he had obtained from union stewards. If, as is the position the union took later on. Turner was wrong in his understanding of this advice, the union would and should have told him of this prior to the culminating meeting with the company. I find that the union acted arbitrarily in ignoring Turner's situation and failing to advise him of his rights during the course of these events.
As is apparent from the above, I found that the union was aware of the events that were unfolding and deliberately chose not to intervene. Their failure to intervene and provide Turner with advice, and their decision to ignore the unfolding situation was arbitrary and in violation of the union's duty of fair representation. I found that the evidence left the distinct impression that all concerned, save Turner, could foresee the eventual discharge and simply allowed it to happen. As stated above, my conclusion was that it was more likely than not that had the union intervened prior to the final meeting which resulted in Turner's discharge, the discharge would have been avoided.
As I stated several times in the previous decision, the facts of this case are quite unusual. Among other things, unlike many cases concerning the union's duty of fair representation, the conduct of the union in this case had a direct bearing on the outcome of Turner's employment relationship. It is in this context that I received the parties' evidence and submissions regarding remedy.
Turner himself wishes to be reinstated. He also seeks compensation for the period in which he has been out of work. Turner gave evidence with respect to his attempts to find work from the time he was discharged to the present, as well as the delay in bringing this case back to the Board for the hearing on remedy.
The company acknowledges that reinstatement is within the Board's powers to grant. However, counsel characterized it as an extraordinary remedy which is not appropriate in most cases brought under section 69 and not appropriate in the present case. Because of the Board's findings that Turner himself acted recklessly and with some wilful blindness in the situation, Turner ought not to be given reinstatement. The company would be prejudiced by a reinstatement order because at the time of the events, it was entitled to rely on its rights under the collective agreement to discharge an employee for just cause, and to impose the specific penalty of discharge on the facts as they existed. Counsel also states that the usual remedial order in a case under section 69, a direction to arbitration, is also not appropriate here. The company urges the Board instead to award compensation only. The company submits that the union ought to be responsible for compensating Turner, subject to any responsibility that Turner should himself bear. The company supports the position of the union (outlined below) with respect to mitigation, and delay in bringing the dispute over remedy back to the Board for hearing, and their effect on compensation.
The union does not oppose the reinstatement of Turner, and states that it is not an inappropriate remedy given the Board's findings. With respect to compensation, Turner ought to bear some responsibility, given that his own actions contributed to his losses. In addition to his conduct during the events leading to his discharge, Turner delayed without any reasonable explanation, for a period of about three months, before filing this complaint. As well, after the Board's decision of June, 1992, Turner did not act diligently in pursuing this matter and many months were lost as the company and the union attempted to obtain his position with respect to the appropriate remedy. The union also submits that the company ought to bear some responsibility for compensation as well, since it was their decision to discharge Turner which led to this complaint.
The union submits that Turner has not properly mitigated his losses after his discharge by diligently looking for other employment. The union suggests that reinstatement, with responsibility for compensation apportioned equally amongst the union, Turner, and the company, would most appropriately reflect all of the elements of this case.
In response, Turner states that he is willing to accept that he should bear some responsibility for his losses as a result of his own actions prior to his discharge, but submits that one-third is too high a share for him to bear in the circumstances. He also disputes that he has failed to make reasonable efforts to mitigate his damages through looking for other work, and disputes that he has delayed at any stage of these proceedings in having these issues resolved.
The Board was referred to Toronto Hydro Electric System, [1980] OLRB Rep. Oct. 1561; The United Steelworkers of America, [1992] OLRB Rep. July 820; Re Shaver Hospital and Canadian Union of Public Employees, Local 1742 (1991) 20 L.A.C. (4th), May 122.; Re Extendicare Ltd. (St. Catharines) and Ontario Nurses' Association (1981) 3 L.A.C. (3d) Dec. 243; Re Lily Cups Ltd. and Printing Specialties and Paper Products Union, Local 466 (1981) 3 L.A.C. (3d) Dec. 6.
I have carefully reviewed the evidence and submissions of the parties with respect to the issues raised. In the peculiar circumstances of this case, I direct that Turner be reinstated. This remedial order most adequately fulfills the purpose of the Board's remedies for a violation of the Act, which is to place the aggrieved party in the position he or she would have been in but for the violation. Although it is always difficult to be absolutely certain about the course of events which would have unfolded but for a violation of the Act, in this case, I have found that on the balance of probabilities, Turner's discharge could have been avoided.
The prejudice to the company by this remedy is no greater than the prejudice which an employer faces in many cases under section 69 where the Board orders a grievance to be referred to arbitration by a union. In those cases, where the remedy is in response to the union's wrongful refusal to refer a matter to arbitration, the company may have long understood the matter to have been settled. Yet, in providing a remedy under section 69, the Board may order the parties to revisit the matter, in order for a complainant to be given the benefit of the grievance and arbitration procedure which had been wrongfully denied. And, where the parties take a grievance to arbitration as a result of an order under section 69, the result of the arbitration may be reinstatement of the grievor, where that is the issue in dispute.
In Toronto Hydro Electric System, supra, the Board ordered the reinstatement of a complainant in a section 69 case to a standby list. In that case, the complainant was deprived of any future standby overtime work as the result of the union's threat to engage in a work stoppage unless the complainant was removed from this list. Having found that the union s conduct was in violation of section 69, the Board ordered that the complainant be reinstated forthwith to standby duty on the same basis as prior to the events in question. In its decision, the Board stated:
The Board views the union's conduct in this complaint as reprehensible to a degree that necessitates an unequivocal remedial order. The Board's order in any complaint must respond to the special circumstances of the case. This is not, as is common in section 60 complaints, a grievance first arising out of an imputed breach of the collective agreement by the employer followed by a refusal of the union to process the grievance to arbitration. In cases of that kind the Board is reluctant to assess the merits of an employer's conduct in the course of framing a remedial order under section 60 of the Act. The Board generally will not, therefore, dispose of a dispute between employer and employee that is essentially a matter for arbitration. Rather, where the breach of section 60 is grounded in a union's refusal to advance a grievance to arbitration the Board will make an order, with or without procedural conditions, requiring it to do so. (For a review of the Board's rationale for this approach see Massey-Ferguson Industries Limited [1979] OLRB Rep. Apr. 216).
This is not that kind of complaint. In this case the grievor's rights were initially violated by the union. The grievor's economic loss arose only when the employer acceded to the union's demands. While there were obvious economic reasons for the employer's capitulation, it was the employer's response in the end that allowed the union's conduct to work its result.
An employer can, in a number of ways, become a participant in a breach of an employee's rights under section 60 of the Act. In [sic] can become involved by collusion or, as in this case, by becoming the instrumentality by which the unlawful end is achieved. When an employer's actions are an integral part of the conduct that is being complained of under section 60 any order that redresses the breach of the union's duty of representation by returning the parties to the status quo that preceded the breach may, of necessity, affect the employer.
Counsel for the company suggests that the remedy ordered by the Board in the above case, reinstatement, was contingent on the Board's view of the union's conduct as "reprehensible". Only in such extreme circumstances, it is submitted, ought the Board order reinstatement as a remedy for a violation of section 69.
The Board does not read the above-noted case to support the proposition that the remedy awarded for a violation of the Act depends on an assessment of how objectionable the conduct was. To the extent that this is the principle urged on me by counsel, it conflicts with the basic tenet in the Board's decisions that the exercise of its remedial powers under the Act should be compensatory and not punitive in purpose. Remedial relief for conduct which breaches the Act is based upon the loss or harm suffered, not upon how reprehensible the conduct is.
As indicated in Toronto Hydro Electric System, the Board's remedial order must respond to the special circumstances of a case. In the extraordinary circumstances of this case, and in light of my findings, reinstatement is the remedy which will place Turner in the position he would have been in but for the union's violation of the Act.
None of the parties urged the Board to order Turner's discharge grievance to arbitration and I do not find such an order to be appropriate in this case. Although ordering a grievance to arbitration is a common remedy where complaints under section 69 have been upheld, this is because in many cases, the union's unlawful conduct lay in its refusal to take a grievance to arbitration. The "make-whole" remedy is therefore an order reinstating a grievance. In the case before us, such a remedy would be an ill-fit with the facts as I have found them. I have found that the discharge would not have occurred but for the union's unlawful conduct. Therefore, an arbitrator adjudicating on the discharge grievance would be faced with a factual scenario which I have found would not likely have existed but for the union's conduct. In such a context, the real issues underlying these events could not be adequately addressed.
With respect to compensation, I do not accept the union's contention that the company ought to bear some of the responsibility for compensating Turner for the period since his discharge to the date of his reinstatement. In Toronto Hydro Electric System, the Board ordered the union to compensate the complainant for all his economic losses from the date of his removal from the standby list to the date of his reinstatement. In cases where the Board has ordered that a union take a grievance to arbitration as a remedy under a section 69 complaint, it is not uncommon for the Board to order that if the result of the arbitration is reinstatement with compensation, damages for the period from the date of the union's breach of the Act to the date of the release of the Board decision will be borne by the union.
The results in these cases are logically related to the Board's conclusion that but for the union's breach of the Act, the complainant would not have sustained damages during the time it took to bring a complaint under section 69. The complainant's damages during this period were caused by the union's actions.
In the case before me, I have also found that the union's unlawful actions caused financial loss to Turner. I have made no findings as to whether the company's actions, independent of the union's actions, were also responsible for this loss during the period in question, and this was not an issue before me. I therefore decline to order the company to share in the damages payable to Turner.
With respect to the issue of delay, there was little more than two months between the date that Turner was informed by the union that it would not pursue his discharge grievance, and the date this complaint was filed. Assuming that delay in filing a complaint is relevant to an assessment of damages, I do not consider this delay to be so lengthy that I ought to take it into account. The union also relies on the delay between the date of my decision respecting liability, and the date that the hearing on remedy took place. I am also not inclined to take this period of delay into account, since it was equally within the union's power to request the Board to schedule the hearing on remedy, as it was within Turner's power.
Finally, I turn to the issue of mitigation. There is no dispute that Turner has not been able to find any work since his discharge, and that his only income has been from Unemployment Insurance Benefits. Turner gave evidence at the hearing regarding his attempts to find other employment. This evidence was very general, vague and with a few exceptions, he was unable to name any employers whom he had contacted respecting work. Turner was permitted to file with the Board after the conclusion of the hearing, any documents created during his job search, such as letters of application, letters of refusal, and notes. The other parties had the opportunity to review these documents, and and have agreed to their admission into evidence. These documents consist of four letters dated from May of 1992 to July of 1992, and two letters dated in June of 1993. In addition, there are undated notations of five telephone contacts. Turner stated at the hearing that he has kept 80-90% of the rejection letters he received, and most of the letters he sent to employers.
Turner testified at the hearing that he was restricted in the type of work he could apply for, because of a back injury, and stated that he had a doctor's note to support this restriction during the period in question. This was also filed with the Board after the hearing, and I do not find that it supports his evidence. I therefore do not find that he was under any restrictions during the period in question which would narrow the range of his job search.
In reviewing the evidence regarding Turner's job search, I do not find that he made all reasonable efforts to mitigate his damages. His job search appears on the evidence to have been sporadic, compressed into the summer months, and even then fairly sketchy. However, it is not at all clear, in the present economic climate, that even if Turner had made all reasonable efforts to find other work, he would have found such very quickly. Turner has been out of work for some twenty-one months. I find it appropriate in the circumstances to limit the union's liability for damages to twelve of these twenty-one months.
Further, given Turner's agreement at the hearing that he bears some responsibility for his losses as a result of his part in the events leading to his discharge, I also find it appropriate to deduct a further three months from the award of damages.
In conclusion, I order:
a. that Tim Turner be reinstated forthwith to the position he held at the time of his discharge from Weston Bakeries;
b. that the union compensate Turner for nine months of lost wages.
- The Board remains seized of this matter in the event of a dispute over the precise amount of the compensation owing or the interpretation or implementation of these orders.