Ontario Labour Relations Board
3052-99-U Mary Elder, Applicant v. Graphic Communications International Union Local 5205s, Responding Party v. Peterborough Paper Converters Inc., Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Ian Wilson for the applicant; Kathleen Martin, John Goulah and Robert Williams for the responding party; Damian Rigolo and Jim Robinson for the intervenor.
DECISION OF THE BOARD; November 7, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2A consultation was held on October 4, 2000. The responding party asserted by way of preliminary motion that the Board should exercise its discretion not to hear the matter because the application fails to disclose a prima facie case and on the ground of undue delay.
3At the risk of oversimplification, I shall briefly describe the nature of the complaint and the union’s response.
4The applicant complains about events that transpired in 1997 and 1998 during the course of her employment and in respect of her decision to retire. She asserts that her position as “janitor/utility” was improperly combined with another position of “core cutter” and given to another employee with less seniority than the applicant. She asserts that her Local president , Mr. Kenny Wilson, did not adequately respond to her inquiry about how the company was permitted to do this “combination”. She also asserts that the union failed to arrange proper forklift training for her so that she would qualify for other positions in the company. She asserts that she was repeatedly laid off until, in complete frustration, she finally decided to retire. She asserts that her union did not properly look after her interests in respect of advising her with respect to her decision to retire. She states that her decision to retire was also motivated by the prospect that the company could go bankrupt, thus potentially tying up her pension for years.
5The responding party union asserts that the applicant’s job was combined with another job in accordance with the union’s written “flexibility” agreement with the company. This agreement was entered into because the company was suffering a significant downturn in business and needed to adjust its workforce. The union asserts that the applicant never applied for postings that arose after her job was combined with the core cutter’s job. It asserts that she was laid off only in accordance with seniority provisions in the collective agreement. It asserts (and the intervenor confirms) that the union was not responsible for forklift training. It states that it was not informed about the applicant’s retirement until after the fact, although it knew she was considering retirement.
6The parties agree that the applicant never filed, or asked the union to file, a grievance about the job “combination”, her forklift training, or the lay-offs. Nor did she specifically request the union’s help in dealing with the company about her retirement.
Submissions
Delay
7The responding party asserts that there was undue delay in the filing of this application and that the delay is prejudicial. The intervenor supports this submission.
8The combination of the applicant’s janitorial job with the core-cutter’s position occurred in 1997. This is a key event in respect of the instant application. The applicant retired effective June 1, 1998. The events (i.e. lay-offs and possible plant closure) leading up to the applicant’s decision to retire are also key events. Thus, put in its most favourable light for the applicant, there was a period of about 19 months from June, 1998 to January, 2000 during which the applicant could have filed her complaint.
9The responding party asserts that this delay is beyond the range permitted by the Board, which is measured in “months not years”. It asserts that if the merits were heard on this application, its witnesses would have to try to recall events as far back as 1997. It asserts that the applicant has not offered a satisfactory explanation for the delay.
10The applicant asserts that she was under the care of a psychiatrist from March, 1998 on, and is unsophisticated in labour relations matters. She admits that in 1998 (after her retirement) she did consult a lawyer about what she should do about her situation. The applicant asserts that the Board can and should be flexible about the length of permissible delay.
Decision
11A delay of approximately 19 months is significantly beyond the period of time in which the Board normally expects a section 74 complaint to be filed. There was a delay of approximately two and a half years from the time that the union allegedly failed to help her resolve the job “combination” issue (janitor and core cutter), and it is this event that appears to have triggered the applicant’s frustration and disillusionment with respect to her employment situation.
12There is much to be said for resolving labour relations disputes expeditiously in order to avoid the deleterious effects of having them cast their shadow over the workplace. Moreover, the ability of the responding party to properly answer a complaint is diminished over the passage of time.
13The Board understands that the applicant’s ability to proceed promptly with her complaint was likely impeded somewhat by her circumstances after her retirement. She faced financial hardship because of her small pension. She was (and is) truly dissatisfied, if not bitter, about how events transpired over 1997 and 1998. From March, 1998 she was being treated by a psychiatrist with medication, although there is no indication that she was incapable of carrying on with her life. This is a case where some flexibility should be allowed as to the permissible delay in filing the application. However, these considerations must be weighed against the possible prejudice to the other parties and in light of the overall labour relations objectives of requiring matters to be commenced expeditiously.
14The Board discussed the issue of delay in The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, a decision involving a complaint under the predecessor provisions to section 74 and 96 of the Act. The Board explained the rationale for its approach as follows:
… 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 machanical [sic] 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 libility [sic] 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.
15The question of whether or not a claim has been brought within a reasonable time therefore depends on all of the circumstances of the case, including the nature of the claim, the reason for the delay and whether there has been any prejudice as a result.
16Having carefully considered these factors, the Board declines to inquire further into this matter on the ground of undue delay. I am not satisfied that the applicant has adequately explained the delay, which significantly exceeds the delay normally permitted. I consider that the delay is prejudicial to the responding party, particularly as some of the key events go back to 1997.
17In view of my ruling on the issue of undue delay, it is not necessary to decide the prima facie issue raised by the responding party. However, if the application were not dismissed on the basis of undue delay, I would dismiss it on the basis that it fails to disclose a prima facie case. None of the applicant’s complaints against the union would meet the requirements of section 74, even if they are assumed to be true.
18Section 74 pertains to the duty of a union to fairly represent its members. The section states:
- 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.
19The applicant is dissatisfied with her treatment at the hands of the local union officials. She claims that Ken Wilson, the local union president was dismissive of her inquiries about the loss of her position through the “flexibility” agreement. However, she never filed, or attempted to file, a grievance over the loss of her position.
20The applicant asserts that the union did not arrange for, or provide her with, proper forklift training. She is unable to show how the union is responsible for this kind of training (which the intervenor states is a company responsibility).
21The applicant asserts difficulties finding another position after her own position was lost due to the combination with the core-cutter’s position. However, she did not apply for certain posted positions at the company after her position was eliminated and she never grieved a failure to be given a position.
22The applicant alleges that she wrote to the company about her situation in April, 1998 and asked her union local president to deliver the letter. However, she did not write to the union. (Both the union and company have no recollection of seeing the letter.)
23The applicant did not tell her union she was attending the employer’s premises to sign her retirement papers. She did, however, retain her own financial consultant to help her.
24The applicant attributes much of her conduct to her lack of faith in the union and in Mr. Wilson. She states that she did not apply for positions because she did not think she would get them. She did not grieve because she thought Mr. Wilson would rip up the grievance.
25The difficulty, of course, is that until the union was specifically asked to do something, it had no opportunity to respond positively or negatively to the request. That being said, the union was clearly aware of the circumstances as to why her position was being combined with a core-cutter position and Mr. Wilson told the applicant that this was permitted by the flexibility agreement with the employer. Perhaps Mr. Wilson could have done a better job of explaining the situation to the applicant, but his conduct (in the absence of a request to file a grievance) falls short of the cavalier behaviour that might constitute a breach of section 74. It is noteworthy that the job combination did not put the applicant out of a job. She was permitted to bump into other positions in accordance with her seniority. However, because of her lack of “critical” skills, her options were somewhat limited as to what else she could do within the company. A “critical” position required specific training.
26The applicant considers that the union should have been more proactive on her behalf and should have taken greater pains to explain things to her and to protect her position. However, the applicant does not identify a provision of the collective agreement, such as a seniority provision, that she considers to have been violated. She asserts that the flexibility agreement did not permit a “non-critical” job to be combined with a “critical” job, but this restriction is not evident within the document and the intervenor and union dispute that such a restriction was intended.
27Therefore, I find that even if the material facts upon which the application is based are assumed to be true, the applicant has not pleaded sufficient facts showing that the union behaved in a manner that was arbitrary, discriminatory or in bad faith.
28The application is dismissed on the ground of undue delay. Were it not dismissed on this ground, I would dismiss it for failure to disclose a prima facie case.
“Anthony Brown”
for the Board