3071-97-U Danielle Demers, Applicant v. IWA Canada Local 2693, Responding Party v. Guylaine Bernard and Dubreuil Forest Products Limited, Intervenors.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Jean-Denis Bélec for the applicant; James Fyshe for the responding party; Yves Fricot for the intervenor employer; no one appearing for Guylaine Bernard.
DECISION OF THE BOARD; January 25, 2000
1The style of cause is hereby amended to add "Guylaine Bernard" and "Dubreuil Forest Products Limited" as intervenors in these proceedings.
2This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the trade union, IWA Canada Local 2693 (the "union") violated section 74 of the Act.
3The applicant, Danielle Demers, complains that the union breached its duty of fair representation to her when it failed to pursue a grievance on her behalf regarding the employer's alleged inaccurate calculation of her seniority since 1987. In this regard, the applicant submits that her employer, Dubreuil Forest Products Limited (formerly Dubreuil Brothers Limited) (the "employer") has inaccurately ranked her behind a fellow employee, Guylaine Bernard (the "intervenor") on the company seniority list.
4This application proceeded by way of consultation on January 6, 2000. Although Ms. Bernard filed an intervention in this matter and was given notice of the proceedings, she did not attend at the consultation. The Board therefore proceeded to hear from each of the parties in attendance with respect to both the merits of the application and the union's submissions that the application should be dismissed on the ground of delay.
5Having considered the representations of the parties, the Board agrees with the union's submission on the preliminary issue and determines that the application should be dismissed on the ground of delay. The following are the Board's reasons for this decision.
Facts and Positions on the issue of delay
6On or about May 23, 1986, the applicant commenced employment in the employer's planer department as a "Stacker and Lathe Worker". She worked in the planer department on an intermittent basis until April 10, 1987 and on a continuous basis thereafter. The intervenor, on the other hand, did not begin working in the planer department until on or about June 1, 1987.
7On or about June 30, 1987, the applicant as well as the intervenor and a number of other employees became permanent employees. Seniority for these employees was granted as of that date. Although the applicant was assigned a lower employee number than the intervenor (being 4609 and 4610 respectively) the applicant was listed behind the intervenor on the seniority list at that time.
8Because of the passage of time, the employer could not now say with certainty how it had decided the order of these new employees on the seniority list. There is, however, a memorandum dated October 9, 1987 about this issue from Roger Hubedine, the personnel manager at the time. Mr. Hubedine has however since left the employer's operations. The memorandum was sent to the Dubreuil Brothers Employees Association (the "Association"), which is the organization that represented the employees in the bargaining unit in 1987. The Association subsequently merged with the union on or about October 1992. The union did not dispute the applicant's contention that it had thereby assumed the liabilities of the Association.
9In this memorandum, Mr. Hubedine suggests that the decision about the order of employees starting on a permanent basis on the same day may have been made according to one of two methods. He refers to an ordering based on the "ten thousand series" number assigned to each employee at the time of temporary hire or, alternatively, an ordering based on the time the employees "punched in" for work on the day of permanent hire.
10The "ten thousand series" number assigned to the applicant is 10439 whereas the intervenor was assigned the number 10309. As the intervenor's number is lower, this method of ordering those employees who started on the same day could explain why the intervenor was ranked ahead of the applicant. At the consultation in this matter, the employer indicated that the assignment of an earlier "ten thousand series" number to the intervenor suggests that the intervenor likely started working on a temporary basis sometime prior to the applicant's date of temporary hire in 1986. This could not, however, now be confirmed.
11The first time that the applicant became aware that the employer had placed her behind the intervenor on the seniority list was in or about October 1, 1987. At this time, the first seniority list on which the applicant's name appeared was released in the workplace. Upon reviewing the seniority list, the applicant states that she complained to the president of the Association at the time, Mr. Danny Vallieres, that it appeared that she had not been credited for the days worked prior to June 1, 1987. Although she asked him for an explanation, none was forthcoming. The applicant alleges that Mr. Vallieres simply told her that "that is the way it is going to be". She also alleges that he refused to file a grievance on her behalf without making any enquiry whatsoever into the merits of her complaint.
12As no grievance was filed, the applicant's name was listed behind that of the intervenor from 1987 to 1996 on the seniority list. On or about April 1996, the employer reversed the order on its own initiative. At this time, the employer issued a revised seniority list, which ordered employees by their employee numbers – not their "ten thousand series" numbers assigned at the time of temporary hire. Since the applicant's actual employee number is lower than the intervenor's, the applicant was ranked ahead of the intervenor on the revised list.
13Shortly thereafter, the union filed a grievance on the intervenor's behalf concerning this revision to the seniority list. The grievance was ultimately settled prior to arbitration sometime in the summer of 1996. Pursuant to this settlement, the union and the company agreed that the ordering of employees on the list would revert back to the ordering that had been in existence for numerous years previously without complaint. The result of this settlement was that the applicant was again listed behind the intervenor. The applicant learned about the settlement shortly after collective agreement negotiations concluded in or around August 9, 1996. The next seniority list was issued in the workplace in or around October 1, 1996. This seniority list confirmed the reversion back to the former ordering; that is, the applicant behind the intervenor.
14Sometime in 1996, the applicant asked Mr. Berthier Levesque, the union representative at the time, to produce all documentation in the union's possession relevant to the seniority issue. He did so promptly. It was at this time that the applicant first discovered Mr. Hubedine's 1987 memorandum addressed to the Association. In 1996, Mr. Legault, the Director of Human Resources at the time (who has since passed away), is also alleged to have advised her that her working days prior to June 1, 1987 were not taken into account in the ordering of employees on the seniority list. The applicant believes that the 1987 memorandum, and in particular the "punch card" method of ordering employees, supports her claim that she should have been ranked ahead of the intervenor. The applicant also believes that the Association deliberately concealed this memorandum from her back in 1987 in order to protect the intervenor. In this regard, the applicant notes that the intervenor's spouse, Denis Laberge, was the steward for the employer's mill at the time.
15The applicant brought her concerns to the President of the union, Mr. McIntyre, shortly after October 1, 1996. Mr. McIntyre subsequently suggested that the seniority issue be determined at arbitration provided that both the applicant and the intervenor agree to be bound by the findings of the arbitrator. A draft agreement to this effect was prepared. The applicant signed it on or about October 10, 1996, but the intervenor indicated approximately three days later that she would not provide her consent. This attempt to resolve the issue therefore failed on or about October 13, 1996 and no further efforts were made by the union to resolve the issue.
16The applicant indicates that her last contact with the union to resolve her complaint was in or around October or November 1996. She then filed the present application with the Board on November 10, 1997. The applicant explained the reason for this delay of approximately one year on the basis that it took some time for her to obtain the appropriate Board forms on which to file her complaint. In this regard, she indicates that she asked the union to provide her with a copy of the Board's complaint forms in or around August 1996, when she first learned about the settlement of the intervenor's grievance. The union did not, however, provide her with a copy of the English forms until in or around April 1997. She then asked the union to provide her with a copy of the French version, which they did in or around July 1997.
17The application dated November 10, 1997 generally complains about the Association's failure to file a grievance on her behalf in 1987 and the union's conduct in 1996 when it settled the intervenor's seniority grievance in the intervenor's favour. The applicant relies on the provisions of the collective agreement between the employer and the Association in effect in 1987 in support of her claim that she should have been placed ahead of the intervenor on the seniority list from 1987 onward.
18The relief sought in this application includes the following:
(i) A declaration that the union has violated section 74 of the Act;
(ii) An order directing the applicant be ranked in priority to the Intervenor as of April 10, 1987;
(iii) An Order compelling the Intervenor to produce copies of her income tax returns and T4 from 1987 to 1996 to establish the quantum of damages;
(iv) An order that the union compensate the applicant for lost wages and income in an amount agreed upon by the parties, as a result of her lower salary rates and seniority rank from 1987 to 1996;
(v) In the alternative, an order that this matter be referred to Arbitration.
19As noted above, the union takes the position that the Board should exercise its discretion not to entertain this application on the ground of delay. In this regard, it submits that the substance of the applicant's complaint dates back to 1987. This represents a delay of over nine years before the application was filed. The union submits that a delay of this magnitude is excessive and justifies the dismissal of the complaint on that basis.
20The applicant, however, submits that the relevant time period should not begin to run until 1996 when the applicant received a copy of Mr. Hubedine's memorandum. In this regard, the applicant submits that section 74 of the Act speaks to conduct that is both arbitrary and in bad faith. The applicant concedes that the facts upon which she bases her claim that the Association acted arbitrarily when it failed to grieve on her behalf in 1987 were known to her at that time. However, the applicant submits that it was not until 1996 when Mr. Hubedine's memorandum was produced that the applicant had any evidence of bad faith on the part of the Association, the union's predecessor.
Decision
21Section 74 of the Act reads as follows:
- 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.
A reading of this section indicates that a trade union breaches the Act where it acts in a manner that is "arbitrary, discriminatory or in bad faith" [emphasis added] in its representation of any of the employees in the bargaining unit. In order to establish a breach of this section, it is not therefore necessary, as the applicant suggested, to establish that a trade union acted in a manner that is both arbitrary and in bad faith.
22According to the allegations made by the applicant, her initial complaint therefore arose in 1987 when the Association, to her knowledge, refused to file a seniority grievance on her behalf without reasonable explanation. In so doing, the union is alleged to have acted arbitrarily within the meaning of the Act. The applicant, however, waited approximately nine years from the time the facts material to her initial complaint were known to her before filing this application.
23The Board has repeatedly indicated that reasonable delay in the filing of an unfair labour practice complaint should be measured in months rather than in years. In The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, decision involving a complaint under the predecessor provisions to section 74 and 96 of the Act, the Board explained the rationale for this approach as follows:
... In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
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.
The question of whether or not a claim has been brought within a reasonable time therefore depends on all of the circumstances of the case, including the nature of the claim, the reason for the delay and whether there has been any prejudice as a result.
24With respect to the delay in this case, the Board finds that the period of approximately nine years before the applicant filed this application complaining about the Association's failure to file a seniority grievance on her behalf in 1987 when asked to do so is excessive. In this regard, the Board firstly notes that the remedy claimed by the applicant involves retroactive financial liability resulting from the alleged incorrect calculation of her seniority from 1987 onward. The union's ability to defend against this application, as well as the employer's ability to defend any resulting grievance, is further significantly prejudiced by a delay of this magnitude. Because of the lapse of time, neither the union nor the employer could now say with any degree of certainty how the seniority order was determined back in 1987. In addition, the management representative who was likely responsible for determining the seniority order, Mr. Hubedine, is no longer working for the employer and his whereabouts are unknown. Mr. Legault, who is alleged to have advised the applicant that her days worked prior to June 1, 1987 were not considered in determining the seniority order, has also since passed away. There is further no reasonable explanation offered for this delay since the finding of a breach does not require the applicant to establish both arbitrariness and bad faith.
25However, even if the Board accepts that the applicant's complaint against the union was somehow resurrected in 1996, the Board nonetheless finds that the applicant's further delay of approximately one year between November 1996 and November 1997 was, in any event, unreasonable in all of the circumstances. As noted above, the applicant indicates that her last contact with the union with respect to her complaint was in October or November 1996. At this time, the union advised her that resolution of the dispute by way of arbitration was not possible in view of the intervenor's refusal to consent. The only explanation offered by the applicant for not filing her complaint until November 10, 1997, approximately one year later, was that she was waiting for the union to comply with her request to provide her with the Board's complaint forms.
26This is not a justifiable reason for such a lengthy delay. The applicant cannot reasonably rely on the union to provide her with the Board forms necessary to file a complaint against it. No aspect of the duty of fair representation requires the union to do so. The applicant, in any event, took several months after receiving the forms to file her complaint with the Board. In all of the circumstances of this case, and particularly in view of the fact that the genesis of her complaint dates back to events occurring in 1987, a delay of approximately one year (on the applicant's best case) is unreasonable. For all of these reasons, the Board has determined to exercise its discretion not to entertain this application.
27Having regard to the Board's finding with respect to the union's objection to the application on the ground of delay, it is unnecessary to consider the arguments made on the merits of the application.
28This application is accordingly hereby dismissed.
"Caroline Rowan"
for the Board