Ontario Labour Relations Board
0958-01-U Darrel Handke, Applicant v. United Steelworkers of America, Local 296, Responding Party v. Collins & Aikman Canada Inc., Intervenor.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; October 31, 2001
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant alleges that the responding party (the “union”) violated section 74 of the Act. The application was filed with the Board on June 26, 2001.
2The applicant is a member of the union and has been employed by Collins & Aikman Canada Inc. (the “employer”) since 1977. The union and the employer are parties to a collective agreement. In May 1999, the applicant obtained a position in the Mould Maintenance Department. The applicant soon became concerned that the employer was not assigning overtime in accordance with terms of the collective agreement. The applicant alleges that he raised his concerns with representatives of the union as early as June 1999 and that his concerns were ignored by the union officials. The union filed a grievance on October 2, 1999 with respect to the assignment of overtime by the employer. The grievance was resolved at step three of the grievance process. The employer offered to settle the grievance by offering redress for some, but not all, of the overtime opportunities which the applicant claimed were improperly denied him. The employer’s offer was accepted by the union and the applicant. The applicant claims, however, that the employer was able to offer redress for only some of the overtime opportunities as a result of the union ignoring his claim until October 2, 1999 when the grievance was filed. The applicant asserts that the union’s delay in acting on his concerns prevented him from seeking redress for all of his overtime opportunities from May 1999.
3The applicant continued to seek compensation from the union for those overtime opportunities which had not been addressed by the settlement. The applicant met with union officials in February, 2000 at which time he requested additional compensation. It would appear that the union refused to provide any compensation to the applicant. At some point, the applicant hired an agent to represent him. On March 10, 2000, the agent advised the union that it had breached section 74 of the Act in dealing with the applicant. Instead of filing an application with the Board, however, the applicant proceeded to commence a civil action against two officials of the union. The civil action was filed in March, 2000 and was dismissed by the Court on June 23, 2000 on the basis that the Court did not have jurisdiction as the matter arose out of the collective agreement. As previously noted, this application was not filed until June 26, 2001.
4The union filed a response to the application on August 10, 2001. The union seeks to have this matter dismissed for delay. The union asserts that there has been a lengthy delay from when the union officials allegedly ignored the applicant’s concerns concerning the assignment of overtime and the filing of the application. The applicant first made the assertion that the union had breached section 74 of the Act in March 2000. Assuming without deciding that the period on which the applicant pursued a civil remedy should be discounted for the purpose of delay, the civil action was dismissed over one year prior to the filing of the application.
5Excessive unexplained delay in filing or proceeding with an application is one basis upon which the Board may decline to inquire into an application in the exercise of its discretion under section 96 of the Act. It has long been accepted that the Board places an emphasis in the expedition of labour relations matters. When considering the question of delay, the following passage from The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420 is often referred to by the Board:
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 latches 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 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 the unions, employers and employees to 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 factors such as: The length of delay and the reasons for it; when the complainant first become aware of the alleged statutory violation; the nature of the reedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which ahs 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.
6A further refinement on the Board’s approach in dealing with the question of delay is set out in the following passage from William Holden Switzer (unreported decision of the Board dated August 7, 1997):
As a general matter, where the delay is less than one year, the onus is on the responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient to justify dismissing a complaint without a hearing on the merits. But where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation for it. At that point, it becomes incumbent on the applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint.
7The agent for the applicant has twice written to the Board addressing the delay argument raised by the union. The Board has considered the explanation offered by the applicant and is not persuaded that it should not exercise its discretion to not inquire further into this matter on the basis of delay. Ignorance of the consequences of failing to file the application in a timely manner does not form a satisfactory explanation for the delay. The applicant has also alleged that the delay in filing the application was caused in part by the actions of union officials who sought to intimidate the applicant to not file the application. The applicant, however, proceeded in March 2000 to file a civil law suit against two union officials; hardly the action of an individual who felt intimidated to assert his rights.
8In correspondence dated September 28, 2001 the union asserted that it was prejudiced by the delay in the filing of the application as one of the union officials who was involved in most aspects of the subject matter of this application had died. In such circumstances, however, the union is not required to demonstrate prejudice. Rather, it is the applicant which must provide a good or satisfactory explanation for the delay. (See Toronto Transit Commission, [1998] O.L.R.D. No. 234 where the Board, in dealing with a fourteen month delay, required the applicant to provide “a compelling and persuasive explanation” for the delay.) The Board finds that the applicant has been unable to articulate a satisfactory explanation for the delay. Accordingly, the Board exercised its discretion to not inquire further into this matter in accordance with section 96(4) of the Act. This application is hereby dismissed
“John Morgan Lewis”
for the Board