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INFORMATION BULLETIN |
#23 REMEDIES AND COSTS
I. INTRODUCTION
In labour relations, as elsewhere, rights are only as effective as the remedies that enforce them. The Labour Relations Code and Public Service Employee Relations Act give important rights to employers, employees and trade unions. The legislation gives the Board a corresponding authority to grant remedies to rectify violations of those rights.
It is important to understand the Board issues remedies. Remedies are meant to rectify a situation. Successful complainants should be in the position they would have been in had there been no violation of the statute. For example, the Board may order an employer to reinstate an employee terminated in violation of the Labour Relations Code. The Board may also order the employer to provide back pay to the date of termination. The Board does not award punitive award damages and does not normally award damages for pain and suffering.
This Bulletin addresses:
·
the Board’s remedial
powers;
·
the principles guiding
remedies;
·
the types of remedies;
·
the obligation of parties to mitigate their
loss; and
·
the Board’s approach to awarding
costs.
II. BOARD’S REMEDIAL POWERS
Several section of the Labour Relations Code give the Board remedial powers.
·
Section 16(8) allows the Board to give any
remedy appropriate to a "complaint, or
application".
·
Section 17(1) is specific to complaints. It
gives the Board broad power to "rectify" breaches of the Code. It sets out
specific remedial powers the Board most often uses to rectify a breach of the
Code but the list of remedial powers is not exhaustive.
·
Section 17(2) provides that the Board may not
make any remedial order to certify a trade union or revoke a trade union's
bargaining rights without a confirming employee vote.
III. PRINCIPLES GUIDING REMEDIES
The Board's remedial powers are broad and remedies are individually fashioned to consider the specifics of each complaint. The Board's remedial powers are, however, limited. The Board observes the following principles in fashioning remedies.
·
Remedies must relate to the complaint:
There must be a clear
relationship between the illegal act found by the Board and the remedy imposed.
Remedies must respond to the damage caused by the specific unfair labour
practice(s) in issue. Remedies cannot, for example, address past
incidents that do not relate to the present dispute or are stale from the
passage of time.
·
Remedies should be appropriate to a continuing
relationship: The parties
to a labour dispute usually must continue their relationship after the
dispute ends. The Board resists giving remedies that may be destructive of this
relationship. Where possible, remedies try to repair such damage and enhance the
future prospects of the bargaining relationship.
·
Remedies must be restorative: Section 17(1) allows the Board to
"rectify" a violation of the Code. To "rectify" means to restore to an original
state. Successful complainants should be in the position they would have been in
had there been no violation of the statute. Remedies should be fully
compensatory, and this sometimes requires the Board to compensate for non-wage
losses that are real but hard to quantify. Occasionally a complainant will apply
for a "make whole" order that includes its costs in prosecuting the unfair
labour practice complaint before the Board. The Board has expressed reluctance
to award “general” damages, or damages for non-monetary loss like injury to an
employee’s reputation, except perhaps in extreme cases. See: European Cheesecake
Factory v. UFCW 401 [1994] Alta.L.R.B.R. 30.
·
Remedies may not be punitive: A remedy becomes
punitive when it so
exceeds what is necessary to restore and compensate, that one must conclude the
intent is to punish the violator of the Code simply for having violated it. The
Code does not permit the Board to grant punitive remedies (although see
Section 114, 115 and 158-162 below). The public interest is in harmonious labour
relations, not labour relations aggravated by considerations of retribution and
punishment. A remedy is not, however, punitive just because it is embarrassing
to the guilty party. See: National Bank of
·
Remedies may consider principles of
deterrence: Deterrence means discouraging repetition of the illegal
act. Deterrence is only a secondary aim of labour relations remedies. It cannot
be pursued to the point that the remedy departs from the principle of
compensation and becomes an exercise in punishment.
·
Damages must not be too remote: The Board grants remedies only for
damage that is reasonably foreseeable from the violation of the Code. The Board
will not consider remedies for damage too far removed from the unfair
labour practice. See: Brewery, Beverage & Softdrink Workers Local 250 v. The Brick [1993] Alta.L.R.B.R. 204.
·
Effect on third parties should be heard and
considered: Remedies
sometimes affect third parties. If a remedial Board order significantly and
directly affects a third party, then that party should have an
opportunity to be heard before an order affecting it issues. See: Midwest Pipeline et al.
[1990] Alta.L.R.B.R. 445.
·
Remedies must recognize voluntarism: Collective bargaining is premised
upon the principle of voluntarism.
IV. TYPES OF REMEDIES
An application to the Board must clearly state the relief or remedy sought. The Board is not, however, bound by the remedies asked for by the parties. It may fashion any remedy it determines appropriate given the remedial principles discussed above. The Board commonly grants the following remedies.
·
Directives: Section 17(1) of
the Code allows the Board to issue directives. A directive is an order from the Board to do or
cease doing an act. Board directives commonly contain instructions to do
something that will, as far as possible, restore the parties to a situation as
if the unfair labour practice had not occurred. We often think of
directives in the context of cease and desist orders for illegal strikes or
lockouts. The Board also issues directives regarding organizing drives (e.g.,
allowing unions to speak to employees) and collective bargaining freeze periods
(e.g., scheduling bargaining dates, altering a bargaining proposal). See: GCIU 34-M v. Southam
Inc. [2000] Alta.L.R.B.R. 177; Royal Oak Mines Ltd. v. CASAW 6 (1996) 1 SCR
369.
·
Interim
directives: Under Section
12(2)(e) the Board can grant an interim preservative directive to preserve a party's rights pending
a prohibited practice hearing. The Board can also issue an interim
directive as a remedy under Section 17 of the Code. The Board may give an
interim remedial directive only after it has found a breach of
the Code. Interim remedial directives can be used as a first step in
resolving an unfair labour practice complaint. An interim remedial
directive may be appropriate where the damage caused by the unfair labour
practice remains unclear because the labour relations situation is in a state of
flux. See:
Economic Development Edmonton v UFCW 401 [2002]
Alta.L.R.B.R 161; UFCW 280-P v. Gainers
Inc. [1986] Alta. L.R.B.R. 323.
·
Posting and mailing decisions and notices:
The Board can require an
employer or union to post or mail notices and Board decisions. This shows
employees that there has been a breach of the Code. It assures other employees
that employers and unions must abide by the Code. It helps individuals realize that
someone more authoritative than the employer or the union has a voice in
determining what the individuals’ workplace rights are. The Board does not, however, direct forced
apologies. An insincere apology is of no value. Further, such an order
can infringe upon a person’s right of free speech and make the order look
punitive. See: UFCW 401, et al. v.
Mariposa Stores [1986] Alta.L.R.B.R. 661.
·
Reinstatement: Reinstatement with back pay is a
common remedy in employer unfair labour practices where employer anti-union
motive played any role in the decision to terminate or lay off the
employee. An employee is entitled to a decision free of anti-union
considerations. Reinstatement, however, is not automatic. "Rectifying" the
unfair practice does not mean freeing the employee from all the consequences of
acts worthy of discipline. Nor does it insulate the complainant from other
developments in the workplace. The Board can order another suitable remedy if it
is not appropriate to reinstate an employee. For example, it may partially
compensate, but not reinstate, an employee if a legitimate general layoff has
occurred in the meantime. The Board may even uphold a tainted dismissal if the
employee's conduct was so worthy of termination that even an employer
unmotivated by anti-union considerations would have done the same. See: CEP 1118 v. Macmilliam
Bathurst Inc. [1992] Alta.L.R.B.R. 253; IWA Canada 1-207 v.
Zeidler Forest Industries Ltd. & ALRB [1989] Alta. L.R.B.R 341; affd. [1990] Alta.
L.R.B.R. 437(Q.B.).
·
Compensation: The
Board may order compensation for lost wages. Often the Board orders compensation for lost
wages only in general terms, and offers the parties a chance to agree on the
amount. The Board reserves authority to rule on the amount if there is no
agreement. The Board can order reimbursement of union dues to employees
where a
·
Reinstatement to trade union
membership: This
remedy is typically given to a complainant who successfully establishes a
complaint of discriminatory application of the union's membership rules
or disciplinary standards. See: James Johnson v. Boilermakers Local 146
[1989] Alta.L.R.B.R. 416.
·
Rescission of disciplinary action:
This remedy is
appropriate for both employer and union discipline. The Board may use it to
order tainted disciplinary proceedings, like warning letters and
suspensions, removed from an employee's employment record. Where a union imposes the discipline
under its constitution, the Board may override and either cancel or modify the
penalty imposed. See: UFCW 401 v. European
Cheesecake Factory Ltd. [1994] Alta.L.R.B.R. 30.
·
Access orders: Serious employer unfair labour practices
can severely damage communication between employees and their bargaining agent.
In a proper case the Board might order relief granting the union access to the
names and addresses of all bargaining unit employees. The Board can direct union
access to employees on company time and premises or to bulletin boards at the
worksite. In some circumstances, like projects in remote sites, an employer may
interfere with the representation of employees by a bargaining agent of their
choice simply by asserting its power to exclude union representatives from the
site. Blind enforcement of property rights where employees seeking union
representation have no alternative to on-site organizing can be an unfair labour
practice. See: United Electrical
Workers 504 and Westinghouse Canada Ltd. [1980] 2 Can.L.R.B.R. 469
(O.L.R.B.).
·
Costs: See below.
·
Plant shutdown and relocation
orders: An employer
may choose to evade a union or its collective bargaining obligations by shutting
down or moving its operations. Other Boards have granted affected employees
access to vacancies in nearby operations of the same employer. They have
combined this with orders for the employer to absorb employees' relocation costs
and to protect seniority of relocated employees. So far the Alberta Board has
not ordered this remedy.
·
Extending grievance timelines:
The Board can
extend the timelines for a grievance to be processed should it find a
union violated Section 153 (the duty of fair representation). See: Bulletin
18.
·
Other: Under Section 114, the Board can suspend an
employer’s obligation under a collective agreement to collect and remit union
dues in the wake of an illegal strike. Section 115 provides corresponding
penalties for employers in the case of an illegal lockout. Sections 158-162
further discuss prosecutions and fines related to illegal acts. The Board can
also void a collective agreement under Section 133 should the Board find either
the union or the employer so influences the other that the other is unfit to
bargain collectively. See: AUPE et al. v. PHAA et
al. [2002] Alta.L.R.B.R. 230.
V. MITIGATION OF LOSS
A damaged
party must make reasonable efforts to mitigate (i.e., reduce) the loss
suffered. The innocent party may not be idle and allow avoidable loss to
accumulate at the wrongdoer's expense. A wrongdoer can show that the
innocent party failed to mitigate its loss and have the damages award reduced.
This reflects that the innocent party has contributed to its own loss.
The onus is
on the complainant to prove damages. The respondent must then show the
employee's failure to mitigate, and why this should reduce Board-ordered
damages. If the Board accepts that a complainant should have mitigated his or
her losses, it reviews several factors. Delay in filing a complaint may reduce
the compensation payable. If an employee has turned down or failed to pursue
reasonable alternative employment opportunities, the Board may reduce the
compensation award by a lump sum. It may cut the compensation off at a specified
date, if it can identify a date on which roughly comparable employment elsewhere
was refused. The Board, however, is not likely to penalize an employee for
failure to mitigate loss if the employee had good cause to believe they would
not be hired.
Labour
Boards have also recognized that an employee's expectation of reinstatement when
fired for union activity is not unrealistic. Employees may reasonably wait a
certain period of time for a reinstatement order without holding themselves out
as available to other employers. The Board in
Mitigation
arises as an issue most often in employee dismissal complaints. It may be applicable, though, to other
unfair labour practice compensation orders as well. For example, one would expect the Board
to require mitigation from an employer seeking damages for economic loss from an
illegal work stoppage. A failure to
seek a timely cease and desist order from the Board may, of itself, be a failure
to mitigate.
VI. COSTS
Section 12(2) of the Labour Relations Code allows the Board to award costs in certain circumstances but has done so only in extraordinary circumstances. The Board has adopted a cautious approach to costs, for policy reasons:
·
awarding costs labels a winner and a loser,
which is counter-productive in an industrial relations relationship;
·
assessing reasonableness of costs is not
something for which the Board's processes are well suited, and would
detract from the Board's primary labour relations functions;
·
the awarding of costs has a punitive
connotation that is inappropriate in the context of Labour Board remedies;
·
awarding costs does not respond to the real
harm done; and
·
routinely awarding costs would encourage
parties to hold off settlements that might otherwise be appropriate in the hope
of recovering costs.
See: Robert Hunter, Douglas
Barnes and Ken Williams v. IBEW 424 [1986] Alta.L.R.B.R. 366.
Section 12(2)(i) allows costs where an application, or complaint is trivial, frivolous, vexatious or abusive or where a reply or defence is trivial, frivolous, vexatious or abusive. This suggests that the legislation limits costs to those cases involving some forms of abuse of process. The costs power focuses on the nature of the application or the reply. It suggests that costs should only be awarded when the matter should not have been brought to the Board at all. It similarly applies where the respondent should not, by filing a defence or reply, have forced the applicants into proving their case. In this sense, costs appear appropriate to compensate one party for participating in proceedings the other party should not have launched or prolonged. The Board may include the necessary legal expenses of the employee as part of a remedy. See: UFCW 401 v. European Cheesecake Factory Ltd. [1994] Alta.L.R.B.R. 30.
The Board
can award "costs it considers appropriate in the circumstances". This leaves the
discretion with the Board. It must make a judgment based on the degree of
frivolity, vexatiousness, etc. It must also consider the extra time and expense
to which the party paying costs has put the party to whom they will be
paid.
See also:
Rules of Procedure
Voting Rules
For further information or answers to any questions
regarding this or any other Information Bulletin please contact:
Director of Settlement
Labour Relations Board
501, 10808 99 Avenue
Telephone: (780)
422-5926
Manager of Settlement
Labour Relations Board
308, 1212 31 Avenue NE
Telephone: (403)
297-4334
Email: alrbinfo@gov.ab.ca
Website: alrb.gov.ab.ca