0027-00-U Service Employees International Union, Local 204, Applicant v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) and Patrick Warner, Alex Salagubang, Ananthanasa Verasingam and Nassir Mohamed, Responding Parties.
0186-00-U National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) and Patrick Warner, Alex Salagubang, Ananthanasa Verasingam and Nassir Mohamed, Applicants v. Service Employees International Union, Local 204 and Mark Ortlieb, Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: John R. Evans, John L. Stout, Karen Walsh, Joman Jara, Amelita Roque, Teresa Minchella and Antonio Elevazo for the SEIU; L. N. Gottheil, Karen Cobb, Patrick Warner, Nasir Mohamed, Alex Salaguband, Ananthanasa Verasingham and Farah Baloo for the CAW and CAW Supporters.
DECISION OF THE BOARD; August 4, 2000
1Board File No. 0027-00-U is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) filed by the Service Employees International Union, Local 204 (the “SEIU”) against the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (the “CAW”) and Patrick Warner, Alex Salagubang, Ananthanasa Verasingam and Nassir Mohamed (the “Four Employees”). In that application, the SEIU alleges that the CAW and the Four Employees have violated section 76 of the Act when they engaged in certain activities during the course of the CAW’s organizing drive. This organizing drive ultimately resulted in a displacement application being filed by the CAW in Board File No. 3197-99-R during the open period of the collective agreement between the Park Hyatt Toronto and the SEIU.
2Board File No. 0186-00-U is a related application under section 96 of the Act, which was filed by the CAW and the Four Employees against the SEIU and Mark Ortlieb, the local union president, in his personal capacity. The CAW and the Four Employees, generally speaking, allege that the SEIU and Mr. Ortlieb have violated sections 76 and 87(2) of the Act when they published certain allegations raised in Board File No. 0027-00-U to all of the employees in the SEIU bargaining unit. At the hearing in this matter, counsel for the CAW and the Four Employees advised that his clients were not pursuing their claim of a breach of section 76 of the Act and relied only on a breach of section 87(2) of the Act.
3For ease of reference, the Board will refer to the application in Board File No 0027-00-U as the “SEIU Complaint” and to the application in Board File No. 0186-00-U as the “CAW Complaint”. The Board will also refer to the CAW’s application for certification in Board File No. 3197-99-R as the “CAW Certification Application”.
The nature of the complaints
(i) The SEIU Complaint
4The complaints raised in the SEIU Complaint include the allegation that the CAW caused the Four Employees to intentionally spread false statements to the effect that certain members of the SEIU negotiating committee supported the signing of CAW membership cards. The SEIU further alleges that the Four Employees interfered with the SEIU’s strike vote held on March 30, 2000, and that the CAW paid all of the Four Employees one hundred dollars ($100.00) for every membership card obtained. The SEIU further notes that such cards have now been filed before the Board in the context of the CAW Certification Application filed on March 31, 2000.
(ii) The CAW Complaint
5The CAW Complaint alleges that it was reasonably anticipated by the SEIU that a representation vote in respect of the CAW Certification Application would be conducted on or about April 6 or 7, 2000. It further alleges that, on or about April 5, 2000, Mr. Mark Ortlieb, on his own behalf and on behalf of his local union, caused the SEIU’s counsel’s cover letter to the SEIU Complaint to be circulated publicly and widely amongst all of the employees in the bargaining unit. That cover letter dated April 4, 2000 states, in part, as follows:
Please note as well that, it has come to the Union’s attention that one or more of the CAW’s supporters are receiving financial compensation from the CAW in return for signed membership cards. It is the Union’s understanding that such employees were paid one hundred (100) dollars a card, and this information from concealed or withheld from members of the bargaining unit. We therefore maintain that members of the bargaining unit have been materially mislead by such persons.
6The CAW Complaint alleges that that cover letter addressed to the Board was delivered by Express Priority Post to the home address of every employee in the SEIU bargaining unit in order to punish the Four Employees “… because they were about to continue, and had been, participating in a proceeding before the OLRB, namely an application for certification on behalf of the CAW-Canada” contrary to section 87(2) of the Act. That section reads as follows:
- (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,
(a) discriminate against a person in regard to employment or a term or condition of employment; or
(b) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
Counsel for the CAW and the Four Employees also asserts that the public circulation of that cover letter constituted a defamatory action giving rise to a lawful claim for damages on the part of the Four Employees.
(iii) The CAW Certification Application
7By way of background, the Board notes that the CAW also filed a statement of representations dated April 19, 1999 in connection with the CAW Certification Application. In its statement of representations, the CAW raised substantially the same allegations of misconduct that it complained about in the CAW Complaint. It further asked that the Board order a new vote as an additional remedy sought in connection with the alleged misconduct.
8By decision dated May 3, 2000, the Board dismissed the CAW Certification Application without a hearing for reasons entirely unrelated to the allegations raised in either the SEIU Complaint or the CAW Complaint. In that decision, the Board dismissed the application pursuant to section 8.1(7) of the Act. It did so in view of the parties’ agreement that the CAW does not appear to represent forty (40) per cent of the employees in either the bargaining unit agreed upon by the parties or the one originally set out in the CAW Certification Application.
Preliminary Objections
9The responding parties to the CAW Complaint and to the SEIU Complaint have raised various preliminary objections to the hearing of these applications.
(i) Objections to the SEIU Complaint
10The CAW and the Four Employees submit that the allegations raised in various paragraphs of the SEIU Complaint do not make out a prima facie case of a violation of the Act and ought to be dismissed. In addition, they submit that all of the allegations made by the SEIU in Schedule “B” to the SEIU Complaint are fatally defective because they are lacking in particulars.
(ii) Objections to the CAW Complaint
11The SEIU and Mr. Ortlieb also raise a number of preliminary objections to the CAW Complaint including that:
the complaint ought to be dismissed on the ground that it fails to make out a prima facie of a breach of section 87(2) of the Act;
the Board should exercise its discretion not to inquire into this application pursuant to its discretion under section 96(4) of the Act;
the complaint should be dismissed as against Mr. Ortlieb in his personal capacity on the ground that there is no basis in fact or in law to assert a claim against him in his personal capacity;
all allegations which suggest that “the conduct in question constitutes defamation, slander, liable or such related tortious misconduct and related claims for damages” should be struck on the ground that the Board is without jurisdiction to adjudicate claims of this nature;
the entire application should be struck for failing to comply with the Board’s Rules of Procedure in that the application was not properly served on the affected party, Park Hyatt Toronto, and that the notice to affected parties filed by the applicant failed to indicate Mr. Ortlieb in his personal capacity;
the CAW should be struck as a party to the complaint on the ground that a trade union is not a “person”, who is entitled to bring a complaint under section 87(2) of the Act. With respect to this objection, the Board notes that counsel for the CAW and the Four Employees conceded that a trade union does not have status to complain about a breach of section 87(2) of the Act.
12At the hearing in this matter, the Board heard the parties’ submissions with respect to the various preliminary objections raised by the SEIU and Mr. Ortlieb in respect of the CAW Complaint. This decision therefore deals with the Board’s disposition of the preliminary objections raised by the SEIU and Mr. Ortlieb to the CAW Complaint only.
13The Board, however, notes that counsel for the SEIU advised the Board in the course of argument that the SEIU consents to the dismissal of the SEIU Complaint in its entirety in the event that the Board decides to dismiss the CAW Complaint on any of the preliminary grounds raised.
DECISION
14For the reasons that follow, the Board has determined to exercise its discretion pursuant to section 96(4) of the Act not to inquire into the CAW Complaint in all of the circumstances of the present case. The Board is not persuaded that it should inquire into that complaint even if it were to find that a prima facie case of a breach of the Act has been made out and that it has the jurisdiction to grant the remedies sought.
15In this regard, the Board firstly notes that it has the discretion under section 96(4) of the Act as to whether or not to inquire into a complaint of a contravention of the Act. (See: Sheller-Globe of Canada Ltd. 83 CLLC ¶314,052 (Div. Ct.)). Section 96(4) of the Act reads as follows:
- (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,
(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;
(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.
[emphasis added]
16In Ontario (Management Board) [1997] O.L.R.D. No. 1779, the Board discussed the rationale, and some of the considerations relevant to, the exercise of its discretion under section 96 of the Act, as follows:
The exercise of this discretion has been the subject of numerous Board decisions, including SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 204, (unreported decision dated January 16, 1995, Board File No. 3431-94-U), where the Board commented on the considerations relevant to the exercise of that discretion as follows:
…It is important for the Board to expend these limited resources in a way that is consistent with the objectives of the statute, will best accomplish its statutory mandate, and is sensitive to practical labour relations realities. Accordingly, in exercising its discretion under section [96] the Board may wish to consider: whether the complaint makes out an arguable case for a breach of some section of the Act; the chance of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; and whether, overall, some statutory or labour relations purpose would be served by the litigation exercise.
An important factor in exercising this discretion is certainly the question of whether or not, even if the applicant were to make out its theory of the case, the remedy sought would likely be granted by the Board. Indeed, the latter consideration forms a part of the PRIMA FACIE test as it appears in the Board’s Rules of Procedure…
In Ontario (Management Board), supra, the Board exercised its discretion not to inquire into a complaint of an individual applicant that the union had breached section 87(2) of the Act. In that case, the applicant claimed that the union had breached the Act when one of the union stewards allegedly harassed him because he had brought an earlier application against the union to the Board.
17The Board notes that one of the incidents of alleged harassment is similar to the alleged incident complained about in the CAW Complaint. In Ontario (Management Board), supra, the applicant alleges that the union posted in the workplace portions of its allegations filed in response to the applicant’s earlier application. Similarly, in the CAW Complaint, the Four Employees complain that the SEIU and Mr. Ortlieb circulated certain allegations made by the SEIU in its unfair labour practice complaint to all of the employees in the SEIU bargaining unit.
18In Ontario (Management Board), supra, the Board determined to exercise its discretion not to inquire into the applicant’s complaint for a variety of reasons. These reasons included the fact that the allegations in that case did not constitute conduct that clearly falls within the parameter of section 87(2) of the Act in that the union steward “…did not threaten the applicant or attempt to dissuade him from proceeding, and was not clearly in a position to carry out any threat…”, the conduct in question had come to an end and the only remedy sought that the Board might grant involved declaratory relief.
19In the circumstances of the present case, counsel for the CAW and the Four Employees primarily argued that the alleged public circulation of defamatory statements represents a “penalty” to the Four Employees because of a belief that these individuals “participated in or [are] about to participate in a proceeding under this Act”, namely the CAW Certification Application “proceeding”. By way of remedy, the CAW and the Four Employees, generally speaking, seek declaratory relief, a cease and desist direction, a public withdrawal of the allegations, and monetary compensation to the Four Employees in keeping with the type of compensation that would be awarded by a court for defamation.
20The Board notes that the dispute between the parties in both the CAW Complaint and the SEIU Complaint arose as a result of the CAW’s proposed displacement of the SEIU as bargaining agent for certain employees of Park Hyatt Toronto. Both the SEIU and the CAW sought relief in the context of the CAW Certification Application as a consequence of the other parties’ alleged misconduct, which is referred to in their respective unfair labour practice complaints.
21The “proceeding” in respect of the CAW Certification Application in issue in the CAW Complaint has now, however, been disposed of by the Board for reasons entirely unrelated to the allegations contained in either the SEIU Complaint or the CAW Complaint. The issues raised by the parties concerning the impact of the alleged breaches on the CAW Certification Application “proceeding” have now therefore been rendered moot by the Board’s disposition of the CAW Certification Application on other grounds. There is therefore no longer any concern about the possible impact of the alleged breach of section 87(2) of the Act raised in the CAW Complaint on the CAW Certification Application, which concern might warrant the Board’s intervention.
22In addition, the Board notes that there is no suggestion that the alleged misconduct complained about in the CAW Complaint is continuing. Instead, the alleged misconduct in issue in that application involving the alleged defamation of the Four Employees as a punishment for participating in the CAW Certification Application “proceeding” relates to a single incident, which does not appear to have been repeated. There is therefore nothing to suggest that the Four Employees require the Board’s intervention in order to prevent further alleged “penalties” from being imposed by the SEIU and Mr. Ortlieb in future. In other words, the remedy sought in the CAW Complaint involving a cease and desist order does not appear to be of significant value given that the conduct complained about has ceased in any event.
23Instead, the primary remedy now sought by the applicants to the CAW Complaint at this stage, other than declaratory relief, involves individual redress to the Four Employees for what is alleged to amount to untrue and defamatory statements. More specifically, the Four Employees seek monetary compensation in keeping with the type of compensation that a court would award in an action for defamation. In addition, the Four Employees seek an order directing the responding parties to issue and distribute a letter to all employees in the SEIU bargaining unit withdrawing the allegations contained in the April 4, 1999 letter referred to above and apologizing to them.
24With respect to the request for a withdrawal of the allegations in issue, the Board notes that the SEIU does not propose to pursue the allegations contained in the cover letter in any event provided that the CAW Complaint is also dismissed at this stage. In other words, the SEIU is content not to pursue the allegations it has made against the Four Employees in that cover letter or, in fact, any of the allegations made in the SEIU Complaint provided that the CAW Complaint concerning the public circulation of those allegations is also not pursued. If the CAW Complaint is dismissed at this stage, the allegations in issue will therefore, for all intents and purposes, be withdrawn in the context of a public proceeding. While this result is perhaps not identical to the public retraction sought by the Four Employees in this case, any additional value obtained must be weighed against the time and expense to the parties and the public involved in litigating the allegations made in both applications.
25In addition, the Board has serious doubts as to whether or not it would grant the other remedies requested involving a public apology or what amounts to damages for defamation in the circumstances of this case assuming without deciding that it has the jurisdiction to do so. With respect to the monetary damages sought, the Board firstly notes that it is entirely possible that the Board would, in fact, never decide whether or not the allegations complained about in the CAW Complaint represent untrue and defamatory statements as alleged.
26This is because the focus of the Board’s inquiry under section 87(2) of the Act in this case is whether or not the alleged misconduct involving the public circulation of certain allegations represents a “penalty” because of the Four Employees’ participation in the CAW Certification Application “proceeding” as alleged therein. A determination that the allegations were circulated as a “penalty” within the meaning of section 87(2) of the Act would not necessarily require a finding that those allegations are untrue or defamatory. Conversely, a finding that they are untrue or defamatory would not necessarily mean that their circulation was a “penalty” within the meaning of that provision of the Act.
27In addition, the Board’s concern under section 87(2) of the Act is with the protection of those persons participating in proceedings under the Act with a view to ensuring the integrity of the Board’s own processes. It is not entirely clear to the Board how providing the Four Employees in this case with monetary compensation to redress the alleged damage to their reputations caused by the responding parties’ alleged tortious conduct would advance that goal.
28Perhaps more importantly, however, the Board considers that labour relations would be better served in all of the circumstances if it were to allow the dispute between the institutional parties in this case to end. While there may be some benefit achieved for the Four Employees if the Board were to inquire into the CAW Complaint, that benefit does not, in the Board’s view, justify prolonging the dispute between the institutional parties in all of the circumstances of the present case. As previously noted, the CAW Certification Application, which gave rise to both complaints, is no longer in issue and the SEIU has expressed a desire not to pursue its allegations in these circumstances provided that the complaint concerning the public circulation of those allegations is also dismissed. On the other hand, if the Board were to inquire into the CAW Complaint it would likely be required to engage in a potentially lengthy and costly litigation exercise with respect to issues, which are moot in so far as they relate to the CAW Certification Application. On balance, and in all of the circumstances, the Board is not persuaded that it should exercise its discretion to inquire into the CAW Complaint.
29For all of these reasons, the application in Board File No. 0186-00-U is dismissed. Having regard to the consent of the SEIU to the dismissal of the SEIU Complaint in these circumstances, the Board hereby also dismisses the application in Board File No. 0027-00-U.
“Caroline Rowan”
for the Board