Ontario Labour Relations Board
3631-99-U Robert Verbora, Applicant v. National Automobile, Aerospace, Transportation, and General Workers Union of Canada (CAW-Canada) and its Local 1973, Responding Party v. General Motors of Canada Limited, Intervenor.
BEFORE: Caroline Rowan, Vice‑Chair.
DECISION OF THE BOARD; July 13, 2000
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the responding party, National Automobile Aerospace and Transportation and General Workers Union of Canada (CAW-Canada), Local 1973 (the “union”) violated section 74 of the Act when it failed to pursue the applicant’s grievance dated July 17, 1995 concerning his seniority to arbitration. The application was filed on March 10, 2000.
By decision dated June 1, 2000, the Board directed the applicant to file submissions in response to the request of the union and the intervenor, General Motors of Canada (the “employer”), to dismiss the application on the ground of delay and for failing to make out a prima facie case of a violation of section 74 of the Act. The Board has now received the applicant’s reply submissions.
With respect to the issue of delay, the Board notes that the application itself indicates that the applicant’s grievance was denied at the third step on or about July 24, 1995. The applicant also indicates therein that the union advised him that it would not proceed with the fourth step appeal as the union had lost similar appeals in the past. In this respect, the Board notes that the applicant did not dispute the union’s contention that it advised him by letter dated January 8, 1998 (more than two years prior to the filing of this application) that his grievance would be withdrawn. The union explained its decision on the basis that it has arbitrated three separate grievances on the same issue and lost all three of them.
In any event, the applicant states in his reply submissions that when it became evident that the union was not going to assist him, he engaged a lawyer. Contact was then made with the employer in February 1999 and again in July 1999 to resolve this matter informally. The applicant alleges that contact was also made with the union in an effort to attempt to convince them to change their position. According to the applicant, “[w]hen it became apparent that there was no other alternative, this Application was launched.” The Board notes that the applicant waited over a year after his first alleged contact with the employer in February 1999, before filing this application with the Board in March 2000. This represents a delay of in excess of a year after it was evident to the applicant that the union was not going to assist him.
The Board finds that the applicant’s delay of over one year is excessive in all of the circumstances and particularly in view of the fact that the applicant’s grievance had been denied at the third step more than four (4) years earlier. The Board notes that its jurisprudence makes clear that reasonable delay in filing a complaint alleging a violation of section 96 should be measured in months rather than in years. In The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, the Board explained its approach as follows:
A perusal of the Board cases reveals that there has not been a machanical [sic] response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial libility [sic] or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
In all of the circumstances of the present case, the Board finds that the applicant’s delay of in excess of one year since the union made clear to the applicant that it would not proceed with his grievance is unreasonable.
- In addition, the Board notes that in order to establish that a union has contravened section 74 of the Act, an applicant must demonstrate that the union’s actions are:
“arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or
“discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is motivated by ill-will, malice, hostility or dishonesty.
In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act.
The Board has discretion under section 96 of the Act as to whether to consider an application, and as to whether it proceeds to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
In the circumstances of the present case, there is no dispute