[1982] OLRB Rep. November 1678
0718-82-U United Steelworkers of America, Complainant, v. Montebello Metal Inc., Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: Jean Beaudry, Roger Malette, Guy Dallaire and Michael Lynk for the complainant; G. G. Smith and F. McAllister for the respondent.
DECISION OF THE BOARD; November 10, 1982
The complainant has complained that the grievors have been dealt with contrary to the provisions of section 79(2) of the Labour Relations Act. The grievors are all of the employees of the respondent in the bargaining unit in a certificate of this Board dated April 13, 1982.
The complainant has requested that the Board issue (a) an order compelling the respondent to appoint an arbitrator pursuant to the terms and conditions of employment in effect at the time of its application for certification, and (b) such further and other orders as counsel may advise and the Board considers just and equitable in the circumstances.
The complainant has also requested that the Board entertain the complaints and sit as a board of arbitration and at the hearing asked the Board to hear the complaints as being violations of section 79. The respondent opposed the request that the Board sit as a board of arbitration. In addition, the respondent denied it had violated section 79 and argued that the Board ought not to entertain these complaints under section 79.
The parties agreed on the following outline of facts. From 1967, until 1982, the Hawkesbury Metal Workers Association (the "Association") has represented certain employees of the respondent. This collective bargaining relationship apparently arose when the respondent voluntarily recognized the Association as the bargaining agent for certain of its employees. Every year or every second year a new collective agreement was negotiated; particularly with respect to monetary and certain other benefits. Towards the end of February of 1982, Mr. Malette of the Association approached the respondent with an urgent verbal request to bargain. Three bargaining sessions were held in February of 1982. On March 1, 1982, the complainant applied for certification and on March 17, 1982, a pre-hearing representation vote was directed. The representation vote was held in April and on April 1, 1982, the collective agreement between the Association and the respondent expired. On April 13, 1982, the Board issued a certificate to the complainant. On May 21 and 22, 1982, the complainant filed two grievances. The first grievance dated May 21 concerned an attendance bonus. The second grievance dated May 22 was with respect to overtime.
On May 27, 1982, the complainant in a letter gave written notice to the respondent to bargain under section 14. On June 7, 1982, the complainant requested the respondent to appoint a nominee to a board of arbitration to hear the two grievances dated May 21 and 22, 1982. In a letter dated June 15, 1982, the respondent stated that it was not prepared to appoint a nominee to a board of arbitration and adopted the position that the two grievances were not arbitrable. A third grievance was filed by the complainant on June 15, 1982, and concerns payment for wages for lost working hours to members of the complainant's negotiating committee. The respondent declined to accept this third grievance. On August 6, 1982, the complainant applied for conciliation services but at the time of the hearing a conciliation officer had not been appointed.
Section 79(1), (2), and (3) of the Act provides:
79.-(l) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees.
(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,
(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board, as the case may be; or
(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.
(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 14, in which case subsection (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
(3) Where notice has been given under section 53 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 44 applies with necessary modifications thereto.
In order for the complainant to succeed it must show either that the grievances are arbitrable and that it is the proper party to pursue the complaints to arbitration, or, that the complaints allege violations of the Act and that the Board has jurisdiction to entertain the complaints. All of the grievances were filed after the expiry of the most recent collective agreement between the Association and the respondent. However, before grievances arose the complainant had applied for certification, thereby initiating the statutory freeze on the terms or conditions of employment under section 79(2). This freeze period overlapped with the freeze which came into effect as a result of notice to bargain given by the Association. However, since the complainant was not a party to the most recent collective agreement, the complainant could not, according to one line of arbitral jurisprudence, take the grievances to arbitration under the most recent collective agreement by using the provisions of section 79(3). See the unreported arbitration decision in Somerville Belkin Industries Limited and Canadian Paperworkers (Hinnegan), dated October 26, 1981.
The freeze under section 79(2) came into force once the application for certification was made on March 1, 1982. Moreover, a freeze arose under section 79(1) once notice to bargain was given on May 27, 1982. These are the two freeze periods relevant to the grievances. It appears from the language of the Act that the two freezes are not identical in scope. Section 79(1) freezes the collective bargaining relationship in the widest possible terms, including the right of both parties to file grievances and proceed to arbitration.
In Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49, the Board remarked at page 59, "This freeze [section 70(2)], however, is not as extensive as the freeze under subsection 1, no reference being made to any right, privilege, or duty of a trade union. The freeze under subsection 2 does not contemplate the stabilization of a existing collective bargaining relationship, since none would exist but, rather, the maintenance of the terms of the individual contracts of employment between the employees and the employer."
The first two grievances arose after the complainant applied for certification, but before notice to bargain was given. Therefore, such grievances fall within the freeze in section 79(2). The subject matters of those grievances are attendance bonus and overtime pay. On the face of it, these are terms and conditions of employment and/or rights or privileges of the employees which are covered by the freeze. See St. Mary's Hospital, [1979] OLRB Rep. Aug. 795. The third grievance arose after the notice to bargain was given by the complainant union, and therefore falls within the freeze under section 79(1). This grievance related to lost pay by members of the complainant's negotiating committee. The right to pay during negotiations may not be the right of an employee, but may fall within the right or privilege of a trade union under the freeze in section 79(1).
The next question is whether the complainant has the standing to proceed with grievances to arbitration. Since there is no collective agreement in force between the complainant and the respondent there is no arbitration procedure which may be directly pursued. The freezing of the right of the complainant to arbitrate in section 79(1) with respect to the third grievance is of no assistance to the complainant because the complainant did not have the right to arbitrate under the previous collective agreement. The grievance and arbitration provisions under the most recent collective agreement between the respondent and the Association was not imported into the employees' individual contract of employment because those terms of the collective agreement are not directly related to the individual employment relationship. Grievance and arbitration procedures are not strictly matters of individual employment. See Bell Canada Ltd., 17 L.A.C. (2d) 119 at 130. Therefore, the employee's right to arbitration through an agent is not frozen by section 79(2) with respect to the first two grievances. Moreover, the complainant could not apply for expedited arbitration because it is not a party to a collective agreement as required in section 45. See Milltronics Ltd., 1981 CanLII 4419 (ON LA), 30 L.A.C. (2d) 393.
In these circumstances, the Board is not prepared to accede to the request of the complainant for the appointment of a nominee to a board of arbitration. If such an order were to be made by the Board it may well be that a board of arbitration would conclude that it did not have the jurisdiction to deal with the grievances because there was no collective agreement in existence.
Section 89 confers on the Board the jurisdiction to deal with breaches of the Act. This jurisdiction may overlap with the jurisdiction of a board of arbitration to deal with breaches of a collective agreement when the activity complained of is a breach of both the collective agreement and the Labour Relations Act. The policy of the Board in this matter was summarized in The Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427, where the Board stated at paragraph 4:
Where an alleged unfair labour practice also constitutes at the same time an alleged breach of a collective agreement, the Board has generally chosen to exercise its discretion under section 79 of the Act and defer the matter to grievance arbitration. (See Collingwood Shipyards [1967] OLRB Rep. July 376; Sunnybrook Food Market (Keele) Ltd. [1972] OLRB Rep. March 210.) However, in exceptional circumstances where the arbitration process is "clearly unavailable or unsuitable to resolving the issue", the Board will depart from its general practice and will itself hear the matter. Examples of such exceptional circumstances include situations where it is alleged that the union has procured the discharge of an employee (Boivin v. United Ass'n of Journeymen et al 67 CLLC Para 16,004), where it is alleged that there has been collusion between the union and the employer to the detriment of an employee (Pitt Street Hotel Ltd. 63 CLLC Para. 16,275), where it is obvious that a grievance arbitrator cannot provide effective relief (Imperial Tobacco Products (Ontario) Limited [1974] OLRB Rep. July 418), and where it is obvious that the interests of an employee will not be effectively represented at arbitration because of a direct conflict between the interests of the trade union and those of the employee (Imperial Tobacco Products [Ontario] Limited, supra.)
The justification for this policy was considered by the Board in Truck Engineering Limited, [1977] OLRB Rep. Jan. 2, where the Board stated at paragraph 6:
We do not feel that as a general practice the Board should depart from its general policy of deferring to grievance arbitration. Indeed, we are concerned that should the Board not retain this policy, parties might, in certain instances, seek to characterize issues which relate primarily to the interpretation, application or alleged violation of collective agreements as being violations of the Act so as to allow them to bring such issues before this Board rather than before boards of arbitration. It is clear from a reading of section 37 of the Act that issues which arise out of the interpretation, administration or alleged violation of a particular collective agreement should, as a general matter, be determined by a board of arbitration established pursuant to the collective agreement itself.
- Another important exception to the presumption of deferring to the jurisdiction of a board of arbitration was made in Kodak Canada Ltd., supra, where the Board stated at page 56, paragraph 9:
... Although grievance arbitration is the proper forum for the resolution of matters relating to individual collective agreements, it is the Labour Relations Board that has been entrusted with the responsibility for resolving matters that go to the general structure of collective bargaining in this Province. Where such matters arise, therefore, it is this Board that provides the proper forum for their resolution, and deferral to grievance arbitration can no longer be the appropriate response.
Since it has been concluded by this Board that none of the grievances may be arbitrable under the existing circumstances between the complainant and the respondent, the Board is of the view that since the grievances arguably may constitute a violation of section 79 that the Board should hear the complaint in so far as it relates to these grievances. Where a board of arbitration does not have jurisdiction to consider a grievance, it has been suggested by a board of arbitration that the better remedy is to have the matter considered by this Board. See Re Corning Canada Inc. and United Brewery Workers, Local 304, 1981 CanLII 4513 (ON LA), 2 L.A.C. (3d) 67 at 71. This line of reasoning was followed by this Board in Laurentian University of Sudbury, [1979] OLRB Rep. Aug. 767. In St. Mary's Hospital, supra, the Board indicated that the scope of the freeze under section 79(2) covers a wide variety of issues, including both legal and extra legal matters. In that case the Board stated at page 800:
Section 70(2) [now section 79(2)] preserves not only the employees' terms and conditions of employment, but also privileges which, by reason of custom and practice, have become a part of the employment relationship. The term "privilege" is extremely broad and extends to all of those benefits which an employee is accustomed to receiving but to which he is not legally entitled, and which cannot, therefore, be considered a "right". In order to determine whether a particular benefit, or aspect of the employment relationship, has become a privilege, it is necessary to examine the circumstances of each particular case since privileges can arise from established custom, practice, or policy. The question is an evidentiary one for, by definition, the Board's consideration must go beyond the strictly legal incidents of the relationship ("rights") and include those aspects of the relationship which give rise to "privileges ."
In conclusion, the Board is prepared to take jurisdiction with respect to these alleged violations of section 79 of the Act.
- The matter is referred to the Registrar to be listed for continuation of hearing.