0853-99-U Don Hurren and Bob Johnstone, Applicants v. International Association of Machinists and Aerospace Workers, Responding Party v. The Toronto Star Newspapers Ltd.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; July 31, 2000
1By decision dated June 19, 2000, the Board directed the applicants to file submissions in response to the request of the International Association of Machinists and Aerospace Workers (the “union”) and The Toronto Star Newspapers Ltd. (the “employer”) that this matter be dismissed on the basis of delay. Pursuant to such direction, submissions have been filed on behalf of the applicants and the employer.
2The allegations relied upon by the applicants in support of their application are succinctly summarized by the employer in its submissions as follows:
(a) The August 1993 reduction in the responsibilities of lead hands (Paragraphs 2, 5, 6 and 7 of the Application; paragraphs 9-30 of the Response; paragraphs 10-11 of the Intervention).
(b) The change in August 1993 to the manner in which the Intervenor compensated the lead hands (Paragraphs 2, 6 and 8 of the Application; paragraphs 22-30 of the Response; paragraphs 13-18 of the Intervention).
(c) The Intervenor’s designation in August 1993 of additional machinists as alternate lead hands, which expanded the lead hand pool (Paragraph 6 of the Application; paragraph 18 of the Response; paragraphs 8 and 11 of the Intervention).
(d) A scheduling change in August 1993 that required lead hands to participate in the regular machinists’ shift rotation, and required the Applicants to work more weekends than before (Paragraphs 6 and 7 of the Application; paragraphs 14-17, 19-21 of the Response; paragraphs 8-10, 12 of the Intervention).
(e) The creation of a Transitional Assistant position for Robert Milligan in September 1997 (Paragraphs 13 and 14 of the Application; paragraphs 40-42 of the Response; paragraph 21 of the Intervention).
(f) A change to the building machinists’ schedule in October 1997 that resulted in the Applicants working one Saturday every three weeks (Paragraphs 15 and 16 of the Application; paragraphs 43-47 of the Response; paragraphs 22-24 of the Intervention).
The applicants’ complaint arises out of the employer’s decision, made in August of 1993, to eliminate the classification of lead hand. The events described above occurred in the course of the employer implementing the decision to eliminate the classification of lead hand. In April 1998, the employer and union concluded a renewal collective agreement, effective January 1998 to December 2001, that effectively eliminated the lead hand classification.
3This application was filed on June 18, 1999, a year and two months after the lead hand position was deleted from the collective agreement and five years and 10 months after, according to the applicants, they became aware that the union had agreed with the employer to eliminate the classification of lead hands.
4It is useful to set out the applicants’ submissions with respect to the issue of delay in full:
The applicants position is based on the contents of this letter along with the contents of the material facts and previous correspondence which have been submitted on their behalf.
They contend that if there was merit to have the issues dispensed with by way of a delay argument, that it should have been done at the outset.
The applicants submit that they did not file a grievance in connection to the August 1993, September 1997 and October 1997 events at that time period since the union did not allow them to file grievance concerning any of the matters which occurred for those time periods. The union would ‘shelve’ the matters.
The applicants came to me in the hopes of negotiating and having the matter resolved within a few months after the April 1998 collective agreement became in effect. It was not until this latest collective agreement, which covers the period of January 1998 until December 2001 that the regular lead hand job was actually deleted along with the predecessor agreement of August 1993. This was the main impetus why the applicants came to me regarding the matters as opposed to an earlier point in time.
In the time period of August 1993 and onward, the employer and the union continually tried to shift the blame to each other with no definite answers ever provided to the clients. There was no element of finality displayed as to what was going to happen.
Any possible delay would not be prejudicial, especially not as against the memory of witnesses. Two main witnesses, namely Bill Ross and Ken Dunn, still have a detailed recollection of the events which have transpired.
5The applicants submit that they did not file a “grievance” with respect to the August 1993, September 1997 and October 1997 events as the union would not allow them to. The issue the Board is concerned with in the course of determining whether this matter should be dismissed for delay is not why the applicants did not file a grievance but rather why the applicants did not file an application with the Board in a more timely manner.
6The Board has stated on a number of occasions that, while the Board does not expect an individual who is unhappy with his/her union’s conduct to immediately file an application with the Board, neither does the Board accept that an individual can postpone filing an application for an extended period of time on the basis that discussions were ongoing. Where an individual is unhappy with the manner in which he or she is being treated at the hands of his or her union the Board expects that reasonable efforts be made to reach a resolution. However, once such reasonable efforts have been made and satisfaction has not been obtained, the Board expects an individual to move promptly and file an application with the Board. Unionized workplaces are fluid. Employers and unions reach deals and accommodations based on their understanding of the existing state of affairs. Employees apply for postings and are transferred based on everyone’s understanding of what positions other employees in the workplace hold. To go back years and try to reconstruct events is incredibly disruptive to all of the workplace participants. It is because of the incredibly fluid nature of a workplace that individuals are expected to act with dispatch in pursuing complaints against their bargaining representatives.
7In the present case, according to the applicants, as of August 5, 1993, there was a posted notice that “made it official that leadhands would be placed back onto the machine shop shift rotation”. The events that occurred from August 5, 1993 through to April 1998, when the collective agreement was amended to omit the classification of lead hand, were part of the execution of the plan to eliminate lead hands. The applicant knew of the plan in August, 1993. The plan was finally and conclusively executed at the latest in April, 1998. The instant application was not filed until June 18, 1999. No reasonable excuse is proffered to explain why, given the applicants’ knowledge of the employer’s plans, a complaint was not filed in a more timely manner.
8The Board has addressed the importance of complaints being filed in a timely manner on numerous occasions. The following passage from City of Mississauga, [1982] OLRB Rep. Mar. 420 is often quoted:
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 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 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. Moreover, the Board has recognized that some attitude 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.
9In the present case, the applicants were well aware of the decision to eliminate the classification of lead hand as early as August 5, 1993. Such decision was clearly and conclusively implemented as of April, 1998 at the latest. Given that the applicants had known of the intention to eliminate lead hands for a considerable period of time in advance of such being done, it was incumbent upon them to act with greater dispatch than they did in the filing of their complaint. No reasonable explanation has been offered for the delay in doing so. It is not condusive to good labour relations to allow a complaint relating to events as stale as the ones in issue in the instant matter to go forward. Accordingly, I exercise my discretion pursuant to section 96 of the Act and decline to entertain this complaint.
10Having regard to the foregoing, this matter is hereby dismissed.
“D. L. Gee”
for the Board