[1995] OLRB Rep. December 1437
2865-92-U William Hill Jr., Applicant v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 938, Responding Party
BEFORE: G. T. Surdykowski, Vice-Chair.
DECISION OF THE BOARD; December 1, 1995
By letter from counsel dated and delivered to the Board on October 31, 1995, Cott BevÂerages ("Cott") seeks reconsideration of the Board's October 11, 1995 decision herein. In that decision, I dealt with the question of remedy which arose out of the January 25, 1995 decision in this application in which I held that Local 938's decision not to take the applicant's October 28, 1992 grievance to arbitration was arbitrary and in bad faith, contrary to what was then section 69 (and is now section 74) of the Labour Relations Act. (I note that in paragraph 45 of the January 25, 1995 decision I incorrectly referred to the grievance as being dated October 19, 1992. That paraÂgraph is hereby amended accordingly.) In the October 11, 1995 remedy decision, I ordered Local 938 to take the applicant's discharge grievance relating to events on October 23 to 26, 1992 to arbiÂtration. I further ordered that Cott waive any time limits or objection to timeliness in that respect.
In its request for reconsideration, Cott makes the following submissions and requests:
We have been retained by Cott Beverages in respect of the above matter. Cott Beverages is the employer with whom Mr. Hill was employed until his termination in 1992. Cott Beverages recently received a Board decision dated October 11, 1995 in respect of Mr. Hill's complaint that the Teamsters Local 938 ("the union") failed in its duty to represent him in a manner that was not arbitrary, discriminatory or in bad faith, contrary to section 69 of the Labour Relations Act. The Board decision directs the union to take Mr. Hill's dismissal grievance to arbitration. The decision also purports to order Cott Beverages to "waive any time limits or objections to timeliness in that respect".
The notice sent to Cott Beverages to advise of this hearing was dated June 27, 1995 and is addressed to "Coit Beverages 6525 Viscount Rd., Mississauga, ON, MV 1H6". The notice does not mention that the hearing might result in a remedy being awarded against Cott, which is not a party to these proceedings.
It is Cott's position that the Board does not have jurisdiction to issue an order directing Cott Beverages to waive any of its rights. Cott Beverages was not provided with effective notice of the hearing. The notice that was provided in no way indicated that there was the potential for remedy to be awarded against Cott notwithstanding that Cott was not a party to the proceeding and was not the subject of Mr. Hill's section 91 complaint. In any event section 91 of the Labour Relations Act does not contemplate awarding a remedy that includes ordering non-parties to the Labour Board proceeding to forego the legal rights which they are entitled to exercise in another proceeding before a different tribunal.
It is not clear from the Board's decision whether its order against Cott Beverages is intended to apply to the time limits in the collective agreement or whether it is intended to also preclude Cott from relying on the prejudicially delay inherent in attempting to defend against a grievance of a termination that occurred three years ago. without prejudice to Cott's position that the Board has no jurisdiction to preclude Cott from relying on either of these, it is Cott's position that the Board's decision applies only to the time limits contained in the collective agreement and that the decision does not apply to preclude Cott from arguing that the grievance should be dismissed because the delay in bringing it has prejudiced Cott's position.
Again without prejudice to Cott's position on the Board's jurisdiction, it is our position that since it is the union which is in breach of the Labour Relations Act, not Cott Beverages, it is inappropriate on the merits of this situation to grant a remedy against Cott. The Board's remedy should have been restricted to the party in breach of the Act, namely the union.
In any event, it is also Cott's position that the union should be responsible for the full costs of the delay involved in bringing the grievance~ including any compensation which may be awarded to Mr. Hill by the arbitrator of the grievance, as it is the union's breach of the Act that has resulted in the delay. The Board should make this determination before the arbitration, not after, as the Board's decision may facilitate settlement negotiations between Mr. Hill, the union and Cott.
In summary, Cott Beverages requests the following:
that the Board schedule a hearing to reconsider the decision of October 11, 1995 in order to deal with the question of the Board's jurisdiction to grant a remedy against Cott Beverages;
that, the hearing also reconsider the merits of the decision to issue a remedy against Cott Beverages, assuming the Board finds that it has the jurisdiction to do so;
that, assuming the Board's decision remains unchanged from its October 11, 1995 ruling, the Board clarify whether its order against Cott Beverages applies only with respect to the time limits contained in the collective agreement or to the prejudicial effect of the delay in bringing the matter to arbitration; and
that, assuming the Board's decision remains unchanged from its October 11, t995 ruling, the Board rule on the issue of the union's liability for damages which Mr. Hill may be awarded in the arbitration and that this issue be determined before the arbitration occurs.
Section 114(1) (formerly section 108(1)) of the Labour Relations Act, 1995 provides that:
114.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevÂertheless the Board may at any time, if it considers it advisable to do so, reconsider any deciÂsion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
Pursuant to this provision, the Board has a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations, also demand that the Board operate from the premise that a Board decision be final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board has in the past generally declined to reconsider a decision unless an obvious error has been made; or a request for reconsidÂeration raises important policy issues which have not been given adequate attention or considerÂation; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or if a party seeks to make representations which it has had no previous opportunity to make. Section 114(1) of the Act is not intended to provide an opportunity for someone to make representations s/he had the opportunity but chose not to make, or an opportunity for someone to re-argue his/her case, either de novo or as some form of appeal. There is nothing in the recently proclaimed Labour Relations Act, 1995, (Bill 7) which requires or suggests that the Board should take a different approach to request for reconsideration now, assuming that the provisions of Labour Relations Act, 1995 apply in this case.
I note that the Board's Rules of Procedure at the time this request was made provided (in Rule 83) that a request for reconsideration include complete written representations in support of that request. Since there is no apparent conflict between this Rule and the Labour Relations Act,1995 or the Board's interim Rules, it continues to apply.
Having regard to Cott's representations in its request for reconsideration in this case, I am not persuaded that it is necessary or appropriate to hold a hearing with respect to Cott's request. Further, I am not satisfied that there is any good reason to give Cott a further opportunity to be heard with respect to the issues determined in the October 11, 1995 decision, or to deal with the correctness of that decision.
Cott does not assert that it did not receive notice of the September 11, 1995 hearing held with respect to the issue of remedy in this matter. The Notice of Hearing sent b the Board to Cott in that respect is dated June 27, 1995. It specifies that "The Board will conduct a hearing for the purpose of dealing with the issue of remedy." It also specifies that: "If you do not attend the hearing, the Board may decide the application without further notice to you and without considerÂing any document filed by you."
By itself, this Notice is a rather bare statement of what was going to be dealt with at the September 11, 1995 hearing. However, it must be read in context, not in isolation. Cott was identiÂfied as an interested party in this application from the very beginning and had notice of the proÂceedings throughout. The company was or ought to have been aware that the determination of this application could affect its interests. It certainly had ample opportunity to obtain advice in that respect. Further, a copy of the January 25, 1995 decision was sent to Cott. That decision sets out all the relevant circumstances and specifically identifies the remedial issue (in paragraphs 46 to 48). That remedial issue was remitted to the parties and Cott and permitted any of the applicant, Local 938 or Cott to request a hearing with respect to that issue. That should have constituted a clear indication of the issue and of Cott's interest in it. Combined with the Notice of Hearing, Cott was on notice that the Board could make a determination of the remedy issue which could affect its interests, and that the issue could be determined in its absence.
In these circumstances, I am satisfied, as I was when I wrote the October 11, 1995 deciÂsion, that Cott had sufficient notice of its interest in the September 11, 1995 hearing, and specifiÂcally that whether or not the applicant's grievance should be directed to arbitration was in issue. That is, Cott knew or ought to have known that a result of the hearing could be a remedy which affected (as opposed of being awarded against) its rights or interests.
As for the balance of the company's submissions in support of its request for reconsiderÂation, the October 11, 1995 decision reviews the development of the Board's remedial approach to duty of fair representation proceedings (paragraphs 5 to 8), and explains why that general approach, and specifically an order directing that the grievance in this case be taken to arbitration, is appropriate in this case (paragraphs 9 to 14).
I find it unnecessary to repeat or expand upon either of those aspects, except to say that because of the time it normally takes to litigate a duty of fair representation application before the Board, such an order must be accompanied by an order requiring the employer involved to waive time limits or objections to timeliness in that respect, either under the applicable collective agreeÂment or otherwise, unless the employer satisfies the Board that such an order is not appropriate in the circumstances. Were it otherwise, such a remedy would often, if not always, be virtually meanÂingless.
In this case, Cott chose not to participate at any stage of the proceedings. That decision may be understandable insofar as the hearing which dealt with the issue of liability is concerned. After all, as I pointed out in the October 11, 1995 decision, even though an employer will be perÂmitted to participate in all stages of such an application if it wishes to do so, the issue of liability concerns the trade union, Local 938 in this case, not the employer. The employer has a direct interÂest, if at all, if the Board determines that the union has breached the duty of fair representation, when the Board considers the question of remedy. This is because the most common remedy given in such a case is an order requiring the grievance to be arbitrated, and a concomitant order prohiÂbiting the employer from relying on certain rights it might otherwise have at arbitration.
In this case, the remedial issue, and the fact that a remedy which would affect Cott's rights or interests had been requested, and that such a remedy might be granted (even though the Board's January 25, 1995 decision expressed some concerns in that respect), was specifically brought to Cott's attention in the January 25, 1995 decision (I note that there is no suggestion that Cott did not receive a copy of that decision;) Indeed, the issue of remedy was specifically remitted to the parties and Cott, while the Board remained seized of the issue, and permitted the applicant, Local 938 or Cott to request a hearing on the issue. Further, and as I have already noted, Cott was sent a notice that a hearing was going to be held with respect to the issue or remedy and that that issue could be determined in its absence if it did not attend, more then two and a half months prior to the hearing. Notwithstanding this, Cott chose not to attend that hearing, and did not otherwise communicate with the Board in that respect. Accordingly, Cott had an opportunity to make all of the submissions it now makes or seeks to make with respect to the merits of the issue of remedy, but it declined to avail itself of that opportunity.
In any event, I remain satisfied that section 96(4) (previously section 91(4)) of the Labour Relations Act, 1995 gives the Board the jurisdiction to order a grievance to arbitration, and to order an employer, whether or not a direct party to the proceeding, to forgo legal rights it might otherwise have at an arbitration proceeding, either under a collective agreement or otherwise. Indeed, such a jurisdiction is essential if the Board is to have the ability to provide a meaningful and appropriate labour relations remedy to an employee whose union has failed to represent him/her fairly. An employer cannot avoid such a result by avoiding or its refusing to participate in such a proceeding of which it has had notice.
Further, Cott has not specified what prejudice it is that it alleges it has suffered in this case with respect to an arbitration of the applicant's grievance on its merits. Having provided no such particulars, I assume that the prejudice being asserted is that which is inherent in any delay, particularly in labour relations matters. As has so often been said, "labour relations delayed are labour relations defeated and denied."
In this case, I am unable to discern any good reason why Cott might have assumed that the matter of the applicant's discharge grievance was a dead issue. The grievance itself was filed and processed through the grievance procedure in a timely manner. This application was filed on December 29, 1992, approximately one month after the applicant was advised by Local 938 that it would not take his grievance to arbitration. Cott received notice of this application, which should have indicated to it that it might have yet have to deal with the applicant's discharge grievance on its merits. Cott also received notice of the March 22, 1993 hearing scheduled for the application and for three other similar applications involving people who had been Cott's employees. At the March 22, 1993 hearing, which Cott chose not to attend, the Board heard the submissions of the parties with respect to certain preliminary issues, which it dealt with it in a decision dated April 20, 1993. This decision was also sent to Cott. This application was then scheduled to be heard on August 17, 1993 but was adjourned sine die on agreement of the applicant and Local 938. Cott received notice of this as well. By letter dated August 4, 1994, some two weeks before the deadline imposed by the Board's adjournment decision, the applicant requested a hearing for August 15, 1994. At the request of Local 938, that hearing was rescheduled for October 24, 1994, and was then subsequently adjourned on agreement of the applicant and Local 938 to November 18, 1994 when I heard the matter. Cott had notice of this as well. Accordingly, between August 1993 and August 1994 Cott was aware that the matter was not proceeding, but however much it may have hoped, it had no good reason to think that this application or the grievance which is the focus of it had been abandoned. Cott ought to have acted to preserve its evidence and position in that respect. Cott had the opportunity to indicate to the Board that it had reason to think otherwise, or could not reasonably have done more than it did in that respect, or to specify how it would be preÂjudiced at arbitration at the hearing scheduled to deal with the issue of remedy. It did not do so. Indeed it has not done so even in its request for reconsideration.
Finally, a separate issue now raised by Cott concerns the issue of apportionment or liaÂbility or any compensation or damages which might be ordered if the grievance is allowed at arbitration, and also whether or not that issue should be addressed by the Board prior to arbitraÂtion. In the absence of a satisfactory explanation from the applicant (and none has been offered to date), it is not apparent to me that the delay between August 17, 1993 and August 4, 1994 is justiÂfied. Subject to a satisfactory explanation from the applicant in that respect, it is not clear to me why Cott should be responsible for paying any compensation which might otherwise be payable to the applicant if he succeeds at arbitration for any part of that period. The delay during other periÂods (from January 25, 1995 to April 19, 1995 when the applicant requested a hearing with respect to remedy, for example) may also require some explanation.
Having made this comment, I do not find it appropriate to determine the apportionÂment issue, either with respect to the August 17, 1993 to August 4, 1994 period, or any other period in which undue delay may be alleged. Nor do I find it appropriate to direct the Registrar to schedule a hearing in that respect at this point. Cott could have attended the September 11, 1995 hearing and addressed this issue but it declined to do so. Further, notwithstanding the applicant's success in this application before the Board, it is not certain that he will also succeed at arbitration, or that if he does in the sense of getting his job back that he will necessarily receive compensation retroactive to the date of discharge. It does not seem to me to be a useful exercise to give Cott another opportunity to address this issue in circumstances where the issue may be moot, and where even if it is not, no one can say what compensation, if any, there is to be apportioned.
In the result, Cott Beverages' request for reconsideration is dismissed.