3633-99-U Louise Monney, Applicant v. Canadian Union of Public Employees Local 1750, Responding Party.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; June 5, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: “Canadian Union of Public Employees Local 1750”.
2This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.
3The remedy requested is that “I am asking the Board to order the grievance to proceed to arbitration if a settlement cannot be reached”. It is apparent from the application that the applicant has been terminated.
4It appears from the material filed by the applicant that she was terminated effective August 25, 1988. Apparently, the applicant left work on March 29, 1988 and was requested on several occasions to submit a return to work clearance from her doctor. When she did not, her employment was terminated. The applicant states that she “was ill and unable to bring doctor’s report as requested”. According to the material filed the applicant alleges that she was told by a union representative in January 2000 that “the Union cannot represent me. This was because I was not working with the Board for a period of time and I was not paying Union dues”. She further alleges that she spoke to the same union representative sometime in June of 1999 and was told that “he thinks that there was a clause in the union agreement stating that an employee can file a grievance for wrongful dismissal within a ten year period. This I did before the ten years were actually up”. She was told in March 2000 there was no file or grievance filed. This application was then filed with the Board on March 10, 2000.
5The responding party submits that this application should be dismissed as the application does not establish a prima facie case. In the alternative the responding party submits this matter should be dismissed because of delay.
6Rule 38 provides as follows:
- Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
7It is well-established that the Board will not generally inquire into an application which is brought after a reasonable period of time has elapsed from the events complained about. In The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, the Board made the following observations regarding delay:
It is by now almost a truism that time is of the essence in labour relations matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. 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 reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay – holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, 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.
A perusal of the Board cases reveals that there has not been a mechanical 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 applicant 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 had 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 applicant. 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.
8In cases of extreme delay the Board is prepared to presume that the other parties to the application have been prejudiced by the passage of time (see John Kohut, [1991] OLRB Rep. Dec. 1367). In deciding whether an application should be dismissed on the ground of delay, the Board will consider the length of the delay, the explanation for the delay, the relief sought, and the relative prejudice to the parties should the application be permitted to proceed, or be dismissed. The longer the delay and the greater the prejudice to the parties, the more persuasive will need to be the explanation for the delay.
9In this situation the termination of the applicant occurred over ten years ago. Though the applicant alleges she was ill, outside of such statement, there is nothing in the material filed that justifies a delay of this nature.
10Section 74 of the Act provides:
- 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.
11The terms “arbitrary”, “discriminatory” and in “bad faith” have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount “arbitrary” conduct. The term “discriminatory” has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons “Bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
12In this instance given the facts as pleaded, there is nothing pleaded which would lead the Board to conclude the applicant has a reasonable chance of success. The pleadings just do not establish that the union has acted arbitrarily, discriminatorily or in bad faith as those terms have been interpreted by the Board.
13The Board has a discretion under section 96 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.
14For all the above reasons the Board exercises its discretion and dismisses this application.
“Timothy W. Sargeant ”
for the Board