3882-99-U William Kenneth Mayer, Applicant v. C.A.W. Local 112, Brian Murphy and Merv Grey, Responding Parties v. Bombardier Aerospace, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; May 29, 2000
In its decision of April 27, the Board directed the applicant to file a reply to various parts of the intervenor’s intervention, and to explain the delay in the filing of his application in respect of matters other than those connected with his termination from employment. The applicant filed his reply.
The Board’s approach to delay in the filing of a complaint is premised on the labour relations reality that undue delay is prejudicial to the relationships that are affected by the complaint. Recently, in Chrysler Canada Limited, [1999] OLRB Rep. July/August 757 the Board made the following observation at paragraph 14:
… anyone who wishes to complain about an alleged violation of the Act or related legislation under which the Board has jurisdiction must do so within a reasonable time, so that the matter can be dealt with in a fair and timely way. It is well established that delay is one basis upon which the Board can (and will) exercise its discretion to decline to inquire into a complaint.
- The frequently cited case of The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420 is also instructive with respect to the rationale behind the Board’s approach to delay. At paragraphs 20 and 21, the Board noted:
… A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not re-emerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. …
… the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties’ current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. 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 [now 96] and decline to entertain them.
The Board in the City of Mississauga case went on to set out the factors that go into a consideration of delay, at paragraph 22:
… 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 liability 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. …
The applicant’s explanation regarding the delay is unsatisfactory. The applicant admits that as early as 1992 he was aware that the responding party (“the union”) was not advancing a number of his grievances any further. He claims that he asked repeatedly for the basis for the union’s position, but was never provided satisfactory answers. He claims further that he was laid off at different times throughout the last several years of employment, and claimed that he was unable to pursue the issues with the union. It is not clear why he was unable to do so. Finally, the applicant contends that it was only in the latter part of 1999 that he discovered evidence of wrongdoing on the part of the union, which then led him to file this complaint several months later.
The applicant has not provided the Board with any valid justification for his delay in raising the issues preceding, and unconnected to, his termination of employment in 1998. He admits he knew that his interests were not going to be advanced by the union, but he has not adequately explained why he took almost eight years to challenge the union’s position. The evidence of wrong-doing he claims he found in 1999 does not change the fact that the applicant appears to have been dissatisfied with his representation by the union from as early as 1992. The union did not file a response to the application, and therefore I decline to make any observation concerning the prejudice, if any, that might result from a delay of eight years in filing the application. However, several of the other traditional factors usually considered by the Board in matters of delay are present in this case. Accordingly, to the extent the application deals with allegations prior to the discipline and associated termination of the applicant in 1998, that portion of the application is dismissed for reasons of delay.
With respect to the applicant’s termination from employment, he claims that the union failed him in the course of the arbitration by not permitting him to place in evidence allegations that the intervenor’s representatives were acting improperly in the discharge of their duties, and that he was being punished for having exposed those improprieties. A reading of the arbitration award, however, indicates that the arbitrator was fully aware of the applicant’s claimed status as a “whistleblower”, and of the applicant’s allegations of a conspiracy on the part of certain of the intervenor’s representatives to deprive the applicant of his employment. The arbitrator flatly rejected the applicant’s conspiracy theory. In any event, it bears noting that the union succeeded in persuading the arbitrator that the applicant had been unjustly terminated.
This brings us to the remedy awarded by the arbitrator, with which the applicant takes issue. The applicant claims that he wanted reinstatement, and that, but for the union’s alleged mishandling of the evidence in this regard, he might have got his job back. The applicant states that he wanted to convey to the arbitrator that his supervisor had in the past used the intervenor’s assets and manipulated the union for the purpose of carrying out a plan to rid himself of the applicant. Perhaps not surprisingly, that argument does not appear to have been made on the applicant’s behalf. A reading of the arbitration award reveals that the union sought the applicant’s reinstatement, and offered a number of arguments in support of its position. The arbitrator rejected the union’s arguments, and instead awarded the applicant approximately 17 months wages. It is difficult to understand how the evidence that the applicant wanted to place before the arbitrator could have changed the result. In fact, it might have fortified the arbitrator’s finding that there was no trust remaining between the applicant and the intervenor, thus further justifying his decision not to reinstate the applicant.
Finally, the applicant alleges that the arbitrator’s award is fundamentally flawed in terms of several findings of fact, and he asks the Board to conduct an inquiry into the circumstances of the arbitration hearing that resulted in the arbitrator’s decision.
The application, insofar as it pertains to the events surrounding the applicant’s termination from employment and subsequent arbitration, does not make out a case for a violation of section 74 of the Act. The union turned its mind to the applicant’s grievance. It took the matter to arbitration, and, more significantly, it won the case on the merits. The union argued for the grievor’s reinstatement, but the arbitrator opted for a remedy in damages. Part of his reasons for not reinstating the applicant involve his observations of the applicant’s behaviour throughout the course of the arbitration.
There would be little or no valid purpose for inquiring into this matter, even if the applicant had been able to satisfy the Board that his allegations otherwise warranted a consultation or hearing. It appears that what the applicant really wants from the Board is a forum for re-litigating his termination grievance. Such an objective is not what section 74 of the Act is designed to achieve. Nor is it the Board’s role to review the decisions of arbitrators pursuant to the Act. That authority lies elsewhere.
The application is dismissed.
“Patrick Kelly”
for the Board