3291-00-U United Steelworkers of America, Applicant v. Matcor Automotive Inc., Responding Party.

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: L. A. Richmond, L. Baig and J. Doucette for the applicant; Gregory J. McGinnis and Bernie Brunino for the responding party.

DECISION OF THE BOARD; June 15, 2001

1. This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, as amended (“the Act”) by the United Steelworkers of America (“USWA”) against Matcor Automotive Inc. (“Matcor”) alleging violations of sections 5, 70, 72 and 76 of the Act.

2. Matcor brought a preliminary motion asking the Board to dismiss the application as a result of delay. A hearing was held on April 27, 2001 on the preliminary motion. This decision is restricted to the issues raised in the preliminary motion.

Background

3. This application was filed on February 8, 2001. It is alleged that four former employees of Matcor had their employment terminated contrary to the Act. The terminations of employment were:

(i) in respect of H. Ibarra on June 15, 2000,

(ii) in respect of L. Velasquez on August 8, 2000,

(iii) in respect of Y. Gill on August 11, 2000, and

(iv) in respect of J. Dhaliwal on November 22, 2000.

4. The USWA filed an application for certification in respect of all employees of Matcor on February 7, 2000. A representation vote was held on February 14, 2000. Unfair labour practice complaints were filed by the USWA both prior to the filing of the application for certification and after the vote was held. The application for certification was subsequently withdrawn by the USWA on September 18, 2000.

5. It is alleged, in this application, that Matcor continues to engage in a broad campaign of intimidation in which it is terminating employees without just cause in an attempt to dissuade union activity and prevent the recognition of the USWA.

Argument of the parties

6. Matcor argues that there has been sufficient delay in the filing of this application for the Board to exercise its discretion not to inquire into the complaint. The application was filed about six months after the termination of the employment of three of the four individuals cited in the application. In relation to the fourth individual, the application was filed two and a half months after the termination of employment. Further, these allegations could have and should have been raised earlier because the parties have had ongoing litigation arising out of the application for certification and the unfair labour practice complaints. For instance, one of the unfair labour practice complaints was settled on June 28, 2000, after the termination of the employment of H. Ibarra. The application for certification was withdrawn on September 18, 2000, after the termination of employment of three of the four individuals.

7. It is argued that the Board has traditionally examined some key factors in determining whether to exercise its discretion and dismiss an application due to delay. Those key factors include:

1. the length of the delay,

2. the explanation for the delay,

3. the prejudice to the parties resulting from the delay,

4. the relief requested,

5. the type of proceeding, and

6. the type of applicant in the proceeding.

8. Matcor states that the delay in filing the application is six months or more with respect to three of the four individuals. There has been no explanation for the delay. Although there is no actual prejudice with respect to the delay other than the passage of time, the relief requested is reinstatement of employment and back wages. Furthermore, the type of proceeding is an unfair labour practice brought by a trade union that is experienced in asserting its rights pursuant to this Act.

9. Matcor submits that, at a minimum, the Board ought to dismiss the application in respect of the three individual claims that are based on events that occurred six months prior to the application date.

10. The Board was referred to its decisions in The Corporation of the City of Mississauga, [1982] OLRB Rep. 420, Caravelle Foods, [1983] OLRB Rep. Jun. 875, William Neilson Ltd., [1994] OLRB Rep. Mar. 326, Eastern Welding, [1994] OLRB Rep. June 673, and Marriot Management Services, [1994] OLRB Rep. July 857.

11. The USWA argued that the delay in the filing of the application has to be understood and evaluated in light of the nature of the application. It alleges that four individual workers have been discharged contrary to the Act.

12. It argued that the actions of Matcor are a “hard and cold” violation of the Act. “Hard” refers to the action of the termination of the employment of the four individuals. “Cold” refers to the fact that the terminations took place well after the “heat” of the organizing drive. USWA does not allege that Matcor had a plan to terminate these four individual union supporters but it opportunistically pounced on “arguably wrong” conduct of the individuals in support of its decision to terminate their employment.

13. USWA states that it is the pattern of these four terminations that gives rise to the complaint. From the time of the first termination to the last is a little more than five months. In determining when to file this application, the USWA had to be mindful of both the conduct of Matcor and the “running of the clock”. It argued that, in cases involving the termination of an individual, the Board has normally accepted delays of up to one year without exercising its discretion not to hear the complaint.

14. It argued that, in this case, the Board is dealing specifically with the rights of individuals. The USWA seeks nothing on its own behalf. There is no ongoing “labour relations” relationship between Matcor and the USWA that will be impacted by the delay in bringing this application. Further, it argued that, in all the cases that have come before the Board, where delay has been argued, there is no case where an application that arises out of the termination of a person’s employment has been dismissed where the delay in filing the application is eight months or less. The longest delay with respect to the four individuals is eight months.

15. The Board was referred to its decisions in Chrysler Canada Ltd., [1997] O.L.R.D. No. 2605, Toronto Public Library Board, [1987] OLRB Rep. Jan. 129, George Hinkson, [1987] OLRB Rep. Oct. 1246, and JL Levitsky, [1983] OLRB Rep. Nov. 1861.

Decision

16. The Board is not prepared to exercise its discretion to dismiss this application for delay. The motion is denied. The hearing will proceed on the dates set out below.

17. There are many factors that need to be considered in determining whether to dismiss an application for delay. The length of the delay, the reason for the delay, the relief sought, the prejudice suffered, the type of the proceeding and the nature of the applicant are all factors that must be considered.

18. Here the delay in the filing of the application from the time of the termination of employment ranged from two and a half to eight months. Certainly, the Board would not normally dismiss an application in relation to an individual whose claim arose only two and a half months prior to the filing of the application. That would be an extremely short limitation period in respect of an application dealing with the termination of one’s employment. Eight months is a far more substantial delay which might support a decision to dismiss the application. However, in these circumstances, the Board declines to exercise its discretion to do so. Having reviewed the jurisprudence provided, the cases can be characterized into two broad groups. The first group is cases where allegations are brought by a trade union or employer against the other in circumstances in which there is an ongoing relationship and a particular labour relations event, such as a strike, is in progress. In these cases, the Board has held applicants to very brief timelines in filing applications and has broadly exercised its power to dismiss for delay because of, among other things, the labour relations harm in dealing with the application after a period of delay. The second group of cases is duty of fair representation applications where a particular person is claiming a trade union has acted contrary to the Act. In these situations, there is no ongoing labour relations event between the trade union and the employer. The Board, because of that, in part, has allowed longer delays in the filing of the applications. Although the applicant here is a trade union, this application is more like the second group of cases where the Board has been more lenient in respect of the delay.

19. There is no reason given for the delay other than the USWA needed to see a pattern develop in order to be able to bring the application. This is a curious argument in that it seems to suggest that the individual terminations in and of themselves do not violate the Act, it is only when they are “cobbled together” that a violation occurs. However, it was suggested that this was a novel application and required a novel approach.

20. The relief sought is reinstatement and back wages. This is substantial relief and prejudicial to Matcor. However, the Board has the power to relieve Matcor from the full weight of the relief if a violation of the Act is found.

21. There is no actual prejudice alleged by Matcor.

22. As for the type of proceeding and the nature of the application, this is one of, if not, the most serious type of application that can be brought pursuant to the Act. The Board should be quite reluctant to dismiss an application where the claim is that an employee has been terminated in violation of the Act. This is in contrast to a duty of fair representation matter where the claim may be based on a grievance relating to a termination but the termination itself is not contrary to the Act.

23. The applicant is the USWA. It is a sophisticated party, well aware of its rights under the Act. It is acting, however, principally as agent for four of its members, each of whom could have brought the application and designated the USWA as his representative. This is not a typical trade union application in which the Board might normally expect a trade union to act more vigilantly to pursue its rights.

24. The hearing of this application will continue on June 27, July 25, November 6, 7, 22, 23, 2001.

“Stephen Raymond”

for the Board