0201-00-U Mary Doughlin, Applicant v. Hotel Employees, Restaurant Employees Union, Local 75, Responding Party v. The Sheraton Centre Hotel & Towers, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 5, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch.1 (the "Act") in which the applicant alleges that her bargaining agent, Hotel Employees, Restaurant Employees Union – Local 75 (“HERE”) has violated the duty of fair representation set out in section 74 of the Act. By a decision dated May 25, 2000 the Board required the responding party to file a detailed reply to the complaint before the Board would deal with the request that the application be dismissed on the basis of timeliness.
2The responding party has done so. It was delayed in doing so as the entire application, which the Board had before it, had not been delivered to the responding party as required by the rules. The Board received one statement from the applicant dated June 13, 2000, and further documents relating to her medical condition on June 29, 2000. Almost all of them are dated 1992-1994; none are dated 1997 of 1998. They will be provided to the other parties at a later date, if necessary.
3The responding party asks the Board to dismiss this application on the grounds that it discloses no prima facie case, pursuant to rule 46. That rule provides:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
This rule requires the Board to have regard only to the facts as alleged in the application. However, the application itself raises serious concerns about the length of time that has passed since the applicant ceased to work, and indeed, since her discharge (or “deemed resignation”) by the Sheraton Centre Hotel and Towers (the “Sheraton”). Accordingly, the Board will not decide the responding party’s motion at this time, but will set out the factual matters that cause the Board concern.
4The applicant was employed for eighteen years by the Sheraton Hotel. She was employed in a bargaining unit represented by the responding party, at least by the time of her discharge. In 1993 the applicant ceased to be able to perform work due to what she characterizes as a workplace injury. Her last paycheque, attached to the application is dated 1993. It appears, however, that she was not formally terminated until 1997. The first activity on behalf of the responding party indicated in the application was on December 11, 1998. At this point HERE wrote to a lawyer who had been retained by the applicant to act for her asking that he provide the union with information relating to her discharge, or “deemed resignation”. There is no response indicated in the application.
5HERE states in its response that it cannot say what happened in 1993. That date is now seven years ago and an intervening trusteeship (see Westbury Howard Johnson Hotel, [1994] OLRB Rep. August 1166) has essentially made it impossible to determine what happened at that time. As for the January 1997 termination (which appears from the correspondence to have been treated as a “deemed resignation” by the Sheraton), HERE states that it was first approached by the applicant in October of 1998, some 21 months later. Although it did attempt to open discussions with the Sheraton, these efforts were rebuffed on the grounds that the time limits for the filing of a grievance have long since passed. HERE then advised the applicant that there was no chance of success in processing a grievance and that it would not gratuitously assist her in her claim before the WSIB.
6These facts, if true, appear to be precisely the kind of claim the Board has consistently refused to entertain. The rationale for refusing to do so is set out in the often cited City of Mississauga, [1982] OLRB Rep. March 420:
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)).
… 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 [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 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 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.
7Although the applicant was a member in the bargaining unit in 1997 (and thus a person to whom the duty of fair representation applied regardless of when she last paid dues), it seems from both the application and the response that she did not choose to pursue this with her bargaining agent until 21 months had passed. Indeed it appears from the application that her real focus is a WSIB claim, and perhaps a severance pay claim, rather than a grievance alleging unjust discharge. It is only when she failed to achieve any results through her own counsel that she turned to focus her complaint on HERE. If this is true, it is simply too late to do so now.
8The only hesitation the Board has in dismissing the application is that certain of the facts on which this decision relies are taken from the response of HERE. The applicant is therefore given leave to file any further statement she wishes to file on or before August 10, 2000. A copy must be provided to the Sheraton and to HERE. The applicant should be advised that the Board has more than sufficient medical evidence on hand. No party doubts the very real nature of her medical condition, nor is her sincerity about her desire to work notwithstanding that medical condition in question. The issue that the Board wishes the applicant to address is what, if anything, she asked her union to do after receiving the letter from the Sheraton in January 1997 and her request for assistance from the HERE in October 1998. If the applicant does assert that she contacted the Union the Board needs to know what form the contact took (letter, telephone call, direct meeting) and the name of the official of HERE with whom she dealt.
9If the applicant fails to respond, or if in doing so she declines to contradict or qualify any fact alleged in the response of HERE, those facts as alleged will be deemed to be true and a final decision will be made on that basis. No other party is to respond to the applicant’s statement unless directed by the Board.
10I am seized of this application.
“David A. McKee”
for the Board