Ontario Labour Relations Board
2694-99-U James Patrick Brennan, Applicant v. United Food Processors Union Local 483, Responding Party, Best Foods Canada Inc., Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; March 8, 2000
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a violation of section 74 of the Act.
2Section 74 reads as follows:
- 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.
3Both the responding party (“the union”) and the intervenor (“the company) request that the matter be dismissed on a preliminary basis on the grounds of excessive delay in bringing the application. The union also requests the dismissal of the matter without a hearing or consultation on the basis that the complaint fails to make out a prima facie case of unfair representation; and on the basis that the complaint is lacking in particulars and fails to identify the remedies sought.
4The application was filed on December 3, 1999. Following the filing of the union’s response and the company’s intervention, the applicant replied to the issue of delay through correspondence received by the Board on January 14, 2000, and attached to this decision. It would appear that the other parties were not copied on this correspondence. In his reply, Mr. Brennan indicated that the materials filed by the union in support of its response were the materials pertinent to this matter. This decision relies extensively on the facts as set out in those materials, as well as the material facts that, following a review of all the pleadings, do not appear to be in dispute. In that regard, the Board notes that there is little if any dispute between the parties with respect to the events that gave rise to this application.
5According to the application, the applicant (“Mr. Brennan”) was on long-term disability (“LTD”) benefits at the time that the company announced it would be closing its operation in Cardinal, Ontario, effective January 1, 1998. Upon learning of the company’s plans, Mr. Brennan contacted his union, and thus began a lengthy series of communications between Mr. Brennan and his union regarding his entitlement to participate as an LTD recipient in the company’s severance program, created pursuant to the closing of its operation. Mr. Brennan alleges, and the union denies, that the union assured Mr. Brennan that he would be eligible. It appears that regardless of whether any such assurances were given, the union tried to secure eligibility in the severance program for Mr. Brennan as a “non-active” employee. In the end, however, according to the union, the company was not prepared to extend the severance program to this category of employees. Faced with an all-or-nothing offer from the company, the union membership voted to accept the severance program despite its application to “active” employees only. As part of the terms of the memorandum of understanding dated December 15, 1997, which codified the terms of the severance program, the union and the company agreed that the subsisting collective agreement between them would terminate when the last active employee was terminated under the severance program.
6The union did not give up trying to get relief on behalf of Mr. Brennan. It filed a complaint under the Employment Standards Act (“ESA”), claiming that Mr. Brennan was entitled to severance pay pursuant to the ESA. On February 2, 1998 the Ministry of Labour (“the Ministry”) advised the union that it had no jurisdiction to deal with the matter because Mr. Brennan was a union employee, and thus, by virtue of section 64.5(2) of the ESA, was barred from filing or maintaining a claim under the ESA. The Ministry’s position was that the collective agreement between the company and the union was still in operation despite their agreement in the memorandum of understanding to the contrary. As such, the union was advised that Mr. Brennan’s claim had to be brought pursuant to the grievance procedure of the collective agreement.
7The union asked the Ministry to reconsider its decision, and in the meantime filed a grievance on Mr. Brennan’s behalf with the company at its U.S. location. The company was not agreeable to the union’s suggestion to arbitrate Mr. Brennan’s grievance.
8After a series of correspondence between the Ministry and the union, the Ministry indicated in its letter of May 13, 1998 that it confirmed its original view that Mr. Brennan could not file a claim under the ESA. By Mr. Brennan’s own admission, he received a letter from the union within a couple of days of the Ministry’s letter of May 13, 1998 advising him of the Ministry’s position. The union’s letter also advised Mr. Brennan that regardless of any legal action the union might take, ultimately it did not think that Mr. Brennan would be able to obtain any severance pay. However, if he wished the union to pursue further legal recourse, it would do so if he bore all the associated expenses.
9It is beyond dispute that Mr. Brennan was aware by mid-May of 1998 of the union’s position with respect to his claims for severance. The issue as to whether the union had unfairly represented Mr. Brennan, contrary to section 74 of the Act, crystalized at that time. As noted, his application in this matter was filed on December 3, 1999. Mr. Brennan has little in the way of explanation for the very lengthy delay in filing the application, other than not knowing to whom he should turn. However, he knew enough to turn to the Ontario Human Rights Commission (“the Commission”), because, as the company pointed out in its intervention, it became aware of a complaint that Mr. Brennan filed with the Commission on October 27, 1998, which sets out essentially the same facts alleged in this case. While the human rights complaint is against the company, at paragraph (k) of the complaint, Mr. Brennan states that “the Union informed me that it would not pursue the matter [the claim for severance] further. They said if I wished to pursue it further, I should do so at my own expense”. Mr. Brennan did not dispute the existence of this complaint in his reply.
10By September of 1999, Mr. Brennan turned to his Member of the Legislative Assembly (“MLA”), whose office advised him that he should file this application with the Board. In fact, the MLA’s constituency executive assistant wrote to the Board on November 30, 1999 asking the Board to intervene. Several days later, Mr. Brennan filed his application
11The 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.”
12The frequently cited case of The Corporation of the City of Mississauga, [1982] OLRB Rep. March 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 on 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.”
13The 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. …
14The applicant has not alleged that there were any incidents or events between the time in mid-May of 1998 ,when he became fully aware of the union’s position concerning his claims, and the date he filed this application, to justify or explain why he has filed this application in late 1999. There is nothing contained in the application material filed by the applicant which justifies or explains the lengthy amount of time that he has allowed to pass before bringing this matter before the Board. Neither the union nor the company made any contribution to the delay commencing from mid-May of 1998. At its highest, Mr. Brennan’s delay of more than 18 months in filing his application is due to ignorance of the law with respect to the duty of fair representation.
15As the Board observed in John Craven [1991] OLRB Rep. Mar. 420, while some latitude must be given to parties unaware of their statutory rights, in the absence of exceptional circumstances or overriding public policy considerations, excusable delay should be measured in months rather than years. Adopting the approach taken in Salvadore Ingraldi , an unreported decision of the Board dated January 21, 1998 (Board File No. 1876-97-U), I find that the applicant’s failure to discharge the onus of satisfactorily explaining a very lengthy delay in bringing the application is sufficient reason not to inquire further into this matter.
16After reviewing all the materials in this file, the Board is of the view that this matter should be dismissed for reasons of excessive delay.
17This application is dismissed.
18Having dismissed the application for delay, it is unnecessary to deal with the union’s other preliminary motions.
“Patrick Kelly”
for the Board