CAW LAW REPORT

The newly revised Ontario Labour Relations Act came into force on January 1, 1993 amid a storm of protest from business, and the benefits to labour can already be seen. One of the less controversial changes was the granting of power to the Ontario Labour Relations Board to give an interim remedy, pending the full hearing of a particular complaint. This power will be crucial to unions, particularly in the course of organizing drives where often damage done by employers in violation of the Act gets addressed too late to save a campaign.

The CAW-Canada recently brought an application for an interim order from the Board for an alleged violation of the Labour Relations Act by Reynolds-Lemmerz Industries in the course of our organizing drive. The application was one of the first allowed by the Board and, together with the decision of the Board three days earlier in Loeb Highland, forms the basis for the Board's jurisprudence in this newly evolving area of law.

In January, Reynolds-Lemmerz Industries had attached a letter to the pay envelopes of its workers and had posted the same letter in the workplace. In the letter, the employer counselled members of the union on how to resign from the union, giving directions on the wording of such a resignation and advising to send the letter by Priority Post or registered mail. The union filed a complaint to the Board under section 91 of the Act, but also wanted the letter removed from the bulletin board in the workplace pending the hearing of the section 91 complaint.

The union filed for an interim order under section 92.1 of the Labour Relations Act to have the offending letter removed from the workplace. When seeking such a remedy, the new board Rules of Procedure requires that the parties file declarations (similar to affidavits) and written submissions containing all the representations the parties wish the Board to consider. The response from the Board to our application was swift: a hearing into the matter was scheduled to take place within 3 days.

While the amended Labour Relations Act grants the power to the Board to allow for an interim remedy, the Act does not set out the test to be met by an applicant before such relief is given. At the hearing the Board considered the written submissions of the parties and the arguments presented orally and gave a bottom line decision on the spot ordering the employer to remove the letter from the workplace and ordering the employer to refrain from communicating with its workers in a similar fashion in the future.

In the written reasons for the order that followed, the Board allowed the relief on the basis that the CAW had made out an arguable case that the Act has been violated. (This is very useful for unions, providing we are the applicants in these matters, as this is the least stringent test to meet.) The Board stated: "Simply put, it is plausible that a panel hearing it may find that the Act has been violated and order a remedy. We note that there have been occasions where the Board has found letters from an employer to employees in the context of an organizing drive to constitute violations of the Act."

The Board also noted that the relative harm of granting or withholding the relief was a relevant consideration. It commented that if the union had to wait until the Board could hear the merits of the complaint, the damage to the organizing drive may be irreparable. The Board recognized that it may not have any effect on actions already taken, however, the interim relief may serve to minimize the potential harm from the date of the relief. The Board noted as well that the interim relief ordered was not very intrusive on the employer's interests.

From this decision, it appears that in granting an interim order, the Board will look at whether the applicant can, on the facts as alleged, make out at least an arguable case that the Act has been violated and that the relative potential harm to the Applicant is greater than the potential intrusion on the rights of the Respondent.

In the Loeb Highland decision that did not involve the CAW, the Board established the same test in greater detail in the context of an application for an interim order to reinstate a key union organizer fired in the course of an organizing campaign.

Reference: CAW-Canada v. Reynolds-Lemmerz Industries Ontario Labour Relations Board, March 15, 1993 (S. Liang, R. Sloan, B. Armstrong)

UFCW v. 810048 Ontario Limited, Loeb Highland Ontario Labour Relations Board, March 12, 1993 (J. McCormack, J. Ronson, D. Patterson)

In a recent decision of the Ontario Labour Relations Board in an application to terminate the bargaining rights of the CAW-Canada and its Local 127 at Venture Industries Canada Ltd. there was a dispute about the eligibility of certain workers to vote on the CAW's continued representation. The union argued that one worker was not a "regular employee" as per the terms of the collective agreement and thus should not be eligible; the Board rejected this argument on the facts. We argued that another worker who was on S&A and/or WCB at the time of the vote should be allowed to vote and the Board agreed.

Of particular interest is the Board's decision regarding the third worker who was on indefinite layoff at the time of the vote. The union argued that because the worker had three years of recall rights under the collective agreement and the employer had not taken any steps to terminate the employment of the worker, he should be eligible to vote. The Board ruled that the ballot should be counted. This decision creates new law in the sense that although the Board characterized the worker's eligibility in terms of his "reasonable prospect of recall", the basis for the decision was the existence of the recall rights in the collective agreement, despite the fact that the employer said that it would not be recalling the worker because of economic conditions and the fact that the employer had not taken steps under the collective agreement to terminate the worker's employment.

This decision is very important for any future applications to decertify the CAW. It is suggested that in any application to terminate the bargaining rights of the CAW, that the union ensure that any workers on layoff who retain recall rights be included on the lists of employees that the employer puts forward as eligible voters. Such workers who are union supporters should be urged to cast ballots in any vote. Additionally, any workers on WCB or S&A should be included on any list of employees and on the list of voters and those who are union supporters should be encouraged to vote. Reference: CAW-Canada and its Local 127 and Venture Industries Ontario Labour Relations Board, March 5, 1993 (B. Herlich, R. Sloan, C. McDonald)

In cases before an arbitrator or before a labour relations board, witnesses are often required in order to present a case. A witness can be compelled to appear at a certain time and place to give testimony upon a certain matter if they are given a summons or subpoena. A subpoena duces tecum requires production of books, papers and other things.

The terms summons and subpoena mean basically the same thing. A court generally issues a subpoena while a tribunal issues a summons. The terms will be used interchangeably here.

There are two steps that must be properly carried out before a summons is enforceable: it must be issued properly and it must be served properly.

The parties to litigation do not have the right to issue a summons themselves. Rather this is the right of the tribunal before which the witness has to appear. The right to issue a summons depends on the governing law of the jurisdiction within which the litigation takes place.

In Ontario an arbitrator receives the power to issue a summons from section 45 of the Ontario Labour Relations Act. The Ontario Labour Relations Board itself also finds its power in the Labour Relations Act (s.105). The form of the summons is dictated by the Statutory Powers Procedure Act.

In the case of arbitration, a summons is drafted by the party wanting the witness to attend. It is given to the Arbitrator who will sign it and return it. The Ontario Labour Relations Board will give out blank summonses that have already been signed by a vice-chair and stamped with the Board's seal. The details of who is to attend and when are to be filled in by the National Representative.

A subpoena duces tecum is a subpoena to a person that requires the attendance of the person at the hearing and requires that person to bring along certain documents. The documents that are required must be listed on the subpoena. The subpoena must be fore the person who has control over the documents.

In order to be effective, a summons must be properly served on the witness. There is no difference between the service of a summons from an arbitrator or a summons from the OLRB. A summons must be served personally and be accompanied by the appropriate attendance money.

To serve a summons personally, the server must show the original summons to the witness in person and leave a true copy with him or her. The server must be able to verify the witness's identity. The server may know the witness or the witness may identify herself.

The summons must be served far enough in advance that the witness has proper notice and ability to attend the hearing. The Legal Department suggests that the summons be served no later than 72 hours before the hearing where the hearing takes place in the same city or town the witness resides in.

Attendance money must be given to the witness in cash along with the summons. The appropriate attendance money will depend on the place of residence of the witness. In Ontario, the basic attendance money to be paid is $50.00 for each day of necessary attendance. In addition the witness must be paid a travel allowance. If the hearing is held in the city or town in which the witness resides, the witness must be paid $3.00 for each day of necessary attendance. If the hearing is held within 300 kilometres of where the witness resides, the witness must be paid $.024 per kilometre each way between his or her residence and the place of hearing or examination.

If the witness fails to attend and give evidence at the hearing at the time and place specified and does not have a lawful excuse, the witness is liable to punishment by the Ontario Court (General Division) in the same manner as if for contempt of that court for disobedience to a subpoena. It is up to the party requesting the attendance of the witness to commence contempt proceedings.

The party must prove that the witness was needed, the witness did not attend and the witness was properly served. In order to prove the witness was properly served, an affidavit of service must be sworn by the server setting out the time and date the witness was served, the amount of attendance money that was paid in cash and the method of identification used. It is important therefore that this information is noted at the time the witness is served.

There are certain people who cannot be compelled to attend a tribunal hearing and give evidence. They can however come of their own will and testify. These witnesses are said not to be compellable. An example of a witness who is competent but not compellable is the spouse of the grievor.

Other witnesses cannot testify whether they want to or not. These witness are said not to be competent. The use of the term competent is a legal one and has nothing to do with the witnesses ability. The legislature will deem a person not to be competent where that person holds a position that gives him or her access to information parties will divulge knowing it will not come out at a hearing. An example of a witness who is neither competent nor compellable is a labour relations officer appointed pursuant to the Labour Relations Act.

The Legal Department has been involved in an important decision recently that has clarified the law in Ontario as it relates to an Employment Standards Officer's power to award interest on severance pay that is paid late. In the case of Wickes Manufacturing v. CAW-Canada and its Local 195, the Arbitrator ruled that an Employment Standards Officer is required to make an order in respect of interest when - as in this case - an employee has been wrongfully kept out of their entitlement under the Employment Standards Act. This is true, the Adjudicator ruled, whether the failure to make the payment was inadvertence or otherwise, in good faith or bad.

What triggers the entitlement to an interest award is not the conduct of the parties, but the requirement that the entitlement in question be paid at a particular time. In this case s.7(5) of the Ontario Employment Standards Act sets out a time limit for the payment of severance and termination pay:

Every contract of employment shall be deemed to include the following provision:

"All severance pay and termination pay become payable and shall be paid by the employer to the employee in two weekly instalments beginning with the first full week following termination of employment and shall be allocated to such weeks accordingly. This provision does not apply to severance pay if the employee has elected to maintain a right to recall as provided in subsection 58(10) of the Employment Standards Act."

Because s. 7(5) sets out a time limit, interest is payable for any time past two weeks following the termination of employment if the employee does not elect to maintain a right of recall. The rate of interest should be calculated in the same way prejudgment interest is calculated in the courts.

This is a significant decision. It is the first time in Ontario that the issue of an Officer's jurisdiction to award interest has been confirmed.

Other jurisdictions should be able to take advantage of this decision. There are provisions in each of the employment standards legislation throughout Canada that set out time limits for the payment of amounts such as termination pay.

For example, the British Columbia Employment Standards Act includes termination pay in the definition of wages. Section 5 of that Act specifies that on termination the employer shall, within 6 days of the termination, pay all wages owing to an employee.

Section 247 of the Canada Labour Code requires the payment of wages or other amounts which the employee is entitled to be made within thirty days from the time when the entitlement to the wages or other amounts arose.

Other jurisdictions are less specific. Some employment standard legislation requires termination pay to be paid "forthwith", see for example s.62 of Alberta's Employment Standards Code, s.40(5) of Manitoba's Employment Standards Act, and s.72(4) of Nova Scotia's Labour Standards Code. The use of the term "forthwith" should still be sufficient to trigger a right to interest on delinquent payments.

The Wickes case means that workers in Ontario have a right to interest on termination and severance pay where it has not been paid in a timely fashion. It is hoped that this right will ultimately be recognized in other Canadian jurisdictions as well.

Often the Legal Department receives inquiries about the effect of an arbitration award on past unemployment insurance benefits. In our last edition, an article appeared dealing with settlements and stressed that a settlement or side letter should always make clear who is responsible for the repayment of unemployment insurance benefits. This is also important where there is a payment arising out of a successful arbitration award. However, where there is an award there are additional statutory considerations.

To illustrate the possible repayment liability an arbitration award poses, we will use an example. A worker is discharged. Following the discharge, the grievor was unemployed and collected unemployment insurance benefits. The union takes her grievance to arbitration and the arbitrator, a year and a half after the discharge, reinstates the grievor with a six month suspension.

Subsection 58(10) of the Unemployment Insurance Act deals with the allocation of earnings paid or payable pursuant to a labour arbitration award. That subsection says:

"Where earnings are paid or payable in respect of an employment pursuant to a labour arbitration award or the judgment of a tribunal, or as a settlement of an issue that might otherwise be determined by a labour arbitration award or the judgment of a tribunal, and the earnings are awarded to specific weeks after a finding or admission of discipline, the earnings shall be allocated to a number of consecutive weeks, beginning with the first week for which the earnings are awarded, in such a manner that the total earnings of the claimant from that employment are, in each week except the last week, equal to the claimant's normal weekly earnings from that employment."

In our example, since the arbitrator substituted a six month suspension, the amount awarded to the grievor is specific to the year following the first six months the grievor was off. According to subsection 58(10), the earnings awarded by the arbitrator should not be allocated to the first six months. Because the award will be allocated to the year that follows, the U.I. benefits received after the first six months would have to be repaid.

The Unemployment Insurance Act makes a number of people liable for repayment of benefits through the operation of sections 35, 36, 37 and 38 of the Act.

Where there is a labour arbitration award, the employer has an obligation to deduct repayable benefits from the award pursuant to section 38. In our example, the employer has the obligation to remit to the Receiver General an amount equal to the benefits the grievor received following his first six months of unemployment.

Where an arbitration award specifies a suspension, a worker should not have to repay unemployment insurance benefits received during the period set out as a suspension.

If you are dealing with this situation you should confirm in writing, either by letter or by signed agreement, that the amount that is paid to the grievor has been reduced by the amount of benefits received by the worker. You should also confirm that the employer acknowledges that it is the employer's responsibility to repay any benefits that are to be repaid.

From time to time the Legal Department receives questions regarding the effect of signing a release. This article is not meant to be an exhaustive guide to releases. This article should, however, give you a few guidelines in approaching a release.

The first principle you should keep in mind when reading a release is that the signatories agree with the written contents of the release. A release should be specific to the actual claim being waived. Be careful of language that releases all claims against the employer. This may leave you with no recourse where a problem, other than the one you were dealing with, arises in the future.

In drafting or signing a release associated with a plant closure agreement particular attention must be paid to the language of the release. This is especially so where it is the intention of the parties that some benefits flow from the release and some from the collective agreement/closure agreement.

If the parties agree that the collective agreement will remain in force, the language of the release should be specific to the item being released. For example, if the company is settling up its severance pay, the document should reflect that the signing of the document and the receipt of a certain sum only releases the company from any future severance claim.

If the Union must sign a more general release, the Union should be sure that all claims are satisfied. After the release is signed, short of proving fraud or misrepresentation, there will be no way to assert an outstanding claim.

It should be noted here that there are some rights that a release will not affect. For example, section 18 of the Workers' Compensation Act prohibits a worker from waiving rights under that Act. Likewise, human rights legislation will often trump private contracts. Human Rights Commissions, however, will take into account the signing of a release by an individual in assessing whether or not a complaint should go forward.

It is possible to nullify the effect of a closure agreement by a release that is too broad. If the release signed by the union and individual members purports to release all claims against the employer with respect to employment, arbitrators may hold that no grievance can arise from the collective agreement even if the closure agreement maintains that the collective agreement is still in force.

The golden rule when dealing with release is to make them as specific as possible to the subject of the release. If they cannot be made specific, ensure that all your claims have been dealt with. Once signed, in the absence of fraud or misrepresentation, a release will be binding.

The Legal Department has been questioned recently regarding what the law in Ontario provides with respect to the conduct of strike votes and contract ratification votes. The passage of Bill 40 makes this issue an important one to examine.

For sometime now, the Ontario Labour Relations Act ("OLRA") has provided specific rules regarding strike votes and contract ratification votes. These rules are found today in ss. 74(4)-(6) of the OLRA which read as follows:

Consequently, a strike vote or ratification vote that has not been open to the participation of non-member workers in any given bargaining unit is vulnerable to a legal challenge.

Moreover access to the important anti-scab rules provided by Bill 40 is governed, at least in part, by the provisions of ss 74(4)-(6) of the OLRA.

As you know s. 73.1 of the OLRA establishes that workers in a bargaining unit will gain the benefit of the anti-scab protection if a strike vote is taken in which at least 60% of those voting authorize the strike. The strike vote must be conducted according to the rules found in section 74(4) to 74(6).

In addition, it is important to note that the benefits of the anti-scab prohibitions are not triggered unless and until the union sends a notice in writing to the employer that the bargaining unit is on strike.

A recent Ontario Court (General Division) decision has stated that S&A benefits provided by a collective agreement will not be deducted from an award of damages received from a civil proceeding. Valletta v. MacKinnon follows several other decisions that have moved the law forward from a conservative Supreme Court of Canada decision called Ratych v. Bloomer (1990), 69 D.L.R. (4th) 25 (see the CAW-Canada Law Report, December 12, 1990). The Ratych case stated that where an injured person continued to be paid during the time that they could not work, that person could not recover damages in a civil suit for loss of wages. This was to ensure that people only recovered damages for the losses they actually incurred. An exception to this rule occurs if employees had paid for the benefit through for example an insurance scheme.

In Valletta v. MacKinnon, Mr. Justice John White stated that S&A benefits will not cause a corresponding deduction in damages ordered in a successful civil action, thereby allowing a worker to receive a weekly benefit from the employer as well as damages from a civil action.

His reasoning was that, because S&A benefits are negotiated in a collective agreement context, workers must give up wages in order to get them. Therefore, workers would have received higher wages if the S&A benefits had not been negotiated. Therefore, there was a loss in negotiating these benefits, and, therefore, they are covered under the exception in Ratych.

In making his decision, Mr. Justice White relied on two earlier rulings, Daynard v. Arthur and Heron v. Palha. In Daynard v. Arthur, Mr. Justice Stortini ruled that S&A benefits were not to be deducted from the damages received in a personal injury suit. He stated that, "The wages and benefits package...were negotiated for on the basis that in order to enjoy these benefits the employees...gave up the dollar amount of the benefits from the overall wage package." Therefore, S&A benefits should not be deducted from an award of damages.

In Heron v. Palha, Mr. Justice Somers held that because of evidence suggesting that the S&A benefits were obtained at the expense of higher wages, the injured person "suffered a loss in exchange for obtaining wages for insurance premiums in lieu of wages during the time she could not work."

The reasoning in these decisions is sound. It recognizes the reality of collective bargaining as a process in which benefits are gained by giving up another potential benefit. Thus, the process of collective bargaining itself implies the "loss in exchange for obtaining wages during the time he or she could not work" that Madam Justice McLachlin stated was an exception to the rule in Ratych.

However, the law in this area is developing and Mr. Justice White sounds a cautionary note, stating that the law surrounding Ratych has not been complete decided. This is especially true since Ratych involved a situation in which the payment of wages for time off from an accident was negotiated in a collective agreement. Furthermore, while these judgments are favourable to union members, they still require some evidence of an actual loss in negotiating S&A benefits in a collective agreement.

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