2798-99-U Joseph Giordano, Applicant v. Canadian Auto Workers Local 27 (CAW) Canada), Responding Party v. General Motors of Canada Limited, Intervenor.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; February 29, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the "Act") alleging a violation of section 74 of the Act. The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
The applicant had, some 40 months prior to filing this application, filed an earlier application under section 96 of the Act (Board File No. 1291-96-U) in August 1996 which alleged that the responding party had failed to proceed with several grievances he had filed in 1995 and 1996 against the intervenor. The applicant sought to enforce rights he claimed he had under “Document 12”, an agreement dealing with preferential hiring of employees who had been laid off from the Scarborough van plant when it closed, through the filing of those grievances. That earlier application had been withdrawn “without prejudice” at the time the parties were scheduled for a consultation before the Board. The Board’s decision dated May 8, 1997 confirming the withdrawal noted that the application had been withdrawn by leave of the Board.
Both the responding party and the intervenor in this application request that the Board dismiss this application because it does not disclose a prima facie case for the relief requested and because of the undue delay in bringing this application. They both submit that the instant application is virtually identical to the earlier application that the applicant had filed in August 1996 that was withdrawn in May 1997 at the time the parties had been scheduled for a consultation before the Board. In dealing with their request, the Board will only consider the material filed by the applicant to determine whether it is appropriate, in the exercise of the Board’s discretion, to grant the motion made by the responding party and intervenor.
It appears this application specifically relates to Grievance No. 10867 and alleges in paragraph 4 of the application that after Grievance No. 10867 was denied by management the responding party withdrew that grievance in violation of the applicant’s “seniority rights, discrimination and misrepresentation”. The responding party’s conduct in relation to Grievance No. 10867 was specifically referred to and formed a part of the allegations in the application in Board File No. 1291-96-U that the applicant withdrew. Indeed, the applicant expressly states in the material he filed in support of his application now before the Board: “I intend to re-open my case against G.M. and the Union. Case File No. 1291-96-U. I feel at the time the case was originally in progress that all the issues were not presented and under pressure from lawyer, I withdrew without prejudice, therefore not ensuing [sic] my full interests into this case.”
The application currently before the Board revolves around the applicant’s grievance (Grievance No. 10867) over events that occurred in 1995. Those events were the subject matter of the application launched by the applicant in Board File No. 1291-96-U. Although that application was withdrawn by the applicant without prejudice and there was no determination of the merits of the application by the Board, the passage of time between when the incidents which gave rise to this application occurred and the date that the instant application was filed (not quite four years) gives rise to a rebuttable presumption that there has been undue delay in bringing the application and that in the absence of a satisfactory explanation for that undue delay, the application ought to be dismissed.
The Board’s approach to exercising its discretion to refuse to inquire into an application because of undue delay is premised on the labour relations reality that undue delay in bringing a complaint forward for determination is prejudicial to the relationships that are affected by the complaint. The Board recently in Chrysler Canada Limited, [1999] OLRB Rep. July/August 757 wrote 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.”
See also The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 in which the Board wrote at paragraphs 20 and 21:
“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 with a reasonable time, the Board may exercise its discretion pursuant to section 89 [now 96] and decline to entertain them.”
Not only has the applicant allowed more than two years to elapse from the earlier “without prejudice” withdrawal of his first application before filing this application, his first application expressly related to the subject of the instant application. In the words of the Board in The Corporation of the City of Mississauga decision cited above: “Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past.” In my view, this application is “a ghost from the past” since the applicant seeks to have the Board remedy what the applicant believes was an injustice done to him in 1995 and 1996. Furthermore, because the applicant had the opportunity to pursue this very matter through the earlier application he had filed in August 1996, but chose to withdraw that application rather than proceed with it and waited more than two years from that withdrawal to file this application, the responding party and the intervenor quite properly would have assumed that the subject matter of this application had been resolved, or, at the very least, would no longer be pursued by the applicant. In my opinion, the Board should not countenance that kind of conduct by an applicant, that is, bringing an application to the point where the parties are about to proceed with a hearing or consultation only to withdraw it and then seek to resurrect it more than two years later.
The applicant has not alleged that there were any incidents or events between the date he withdrew his earlier application and the date he filed this application to justify or explain why he has filed this application in late 1999. Simply put, there is nothing contained in the application material filed by the applicant upon which the applicant could rely to justify or explain the lengthy amount of time that he has allowed to pass before bringing this matter back before the Board. If the applicant had filed this application shortly after having withdrawn his first application without prejudice, the result might have been different, if the applicant had provided a satisfactory explanation for that withdrawal. In this case, the applicant provides no explanation for either the withdrawal (other than suggesting his lawyer pressured him into withdrawing, which does not, in my opinion justify commencing a new application relying on substantially the same allegation) or why he waited more than two years to come back to the Board with essentially the same complaint. The responding party and the intervenor are not responsible for the advice the applicant received from his counsel or for the decision the applicant made at the time of the withdrawal of that first complaint. The consequences of having made that decision rest entirely upon the applicant. The responding party and the intervenor should not have to go through the litigation process all over again as a result of the applicant’s decision more than two years later that he should not have withdrawn his first application.
The Board, in the exercise of its discretion under section 96 of the Act, refuses to inquire into this application. This application is therefore dismissed.
“Harry Freedman”
for the Board