[1983] OLRB Rep. October 1633
0458-83-U Tom Norton and the Professional and Clerical Workers of Canada, Complainants, v. The Canadian Union of Operating Engineers and General Workers and its Local 111 and Robert Whissell, Respondents.
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members J. Wilson and C. A.
Ballentine.
APPEARANCES: Thomas P. Norton and Frank Reilley for the complainants; Lynn H. Hamden, Gordon Searson and Susan Zimmerman for the respondents.
DECISION OF THE BOARD; October 13, 1983
This is a complaint under section 89 of the Labour Relations Act alleging a violation of sections 64 and 66. Tom Norton was employed as a business representative by Local 111 of the Canadian Union of Operating Engineers and General Workers (the "employer") from January 1982 to May 1983 when he was discharged. Mr. Norton was represented in his employment relations by the Professional and Clerical Workers of Canada (the "union").
The employer argued that the complaints raised by Mr. Norton have already been disposed of by an arbitrator and that this Board should defer to the arbitral process. In order to respond to this preliminary objection, we will first review both the contentions made before us by Mr. Norton and the matters addressed by the arbitrator.
Mr. Norton's allegations fall into two categories. He alleges he was discriminated against by his employer, contrary to section 66, for enforcing his collective agreement and initiating earlier unfair labour practice proceedings. The alleged discrimination took the form of threats of reprisal and, ultimately, discharge.
In addition, the complainant contends the employer contravened section 64 by attempting to prevent Frank Reilley, an employee of the Retail, Wholesale and Department Store Union, from acting as Norton's representative in the grievance process. Reilley met Norton in the spring of 1983 while both were attending at the Board's offices, and Norton asked Reilley to represent him. Shortly after this encounter, Robert Whissell saw Reilley's name on a grievance form relating to the complainant. As president of Local 111, Whissell was Norton's superior. Robert Whissell then wrote to the International President of the Retail, Wholesale and Department Store Union:
Dear Sir:
I am writing to you in my capacity as President of the "Canadian Union of Operating Engineers and General Workers" Local 111, in the Ottawa area. It has come to my attention recently through the Labour Relations Board that one of your employees, namely Frank Reilly is to represent one of our employees Thomas Norton at the Labour Board. Thomas Norton works under a collective agreement and belongs to a union "The Professional and Clerical Workers of Canada". It would seem to me the proper procedure to follow here would be to call in a representative from his union to represent him and not a Business Representative from your union. Mr. Norton has entered a section 45 at the Labour Board and he has named Frank Reilly 1061 Merivale Road Suite 6A-B Ottawa Ontario, KlZ 6A9 under the heading of — address of trade union. I would hope Mr. Reilly would be told by his proper boss to look after his own union affairs and stay out of ours.
If more information is required please feel free to call me at home (613) — 820-0902 or at our local office.
A copy of this letter was sent to Reilley and to Norton's union. Norton testified about a subsequent conversation in which Whissell expressed opposition to Reilley, but Whissell denied any such discussion. The employer was later advised by the union, in a letter dated May 30, 1983, that Mr. Reilley had been authorized to represent the complainant. Apparently, the union does not employ its own representatives.
- The complainant initiated two arbitral proceedings against the employer in the spring of 1983. Mr. Norton's discharge was the subject of one arbitration hearing which consumed six days in June, 1983. The other grievance alleged violations of fourteen provisions of the collective agreement and resulted in three days of hearings in late May and early June. In this proceeding, Mr. Norton alleged violations of Articles 1.01, 14.01 and 14.03 of the contract:
1.01 The employer recognizes the union as the sole collective bargaining agent for all clerks and business representatives in the employ of the employer.
14.01 The Employers agree that there shall be no discrimination by the Employers against any employee, or group of employees because of membership in the Union. Employees shall not be subject to prejudice or discrimination because of presenting grievances for themselves or other employees.
14.03 The Employer shall not discriminate for Union activities.
Both grievances were heard by the same arbitrator who issued two awards in late August, 1983. The arbitrator had this to say about Mr. Norton's dismissal:
His recourse to litigation in face of possible violations of the collective agreement or the Labour Relations Act is almost Pavlovian. He contends that the employer dismissed him partly in reaction to the grievances and unfair labour practice complaints he has lodged. While the executive was not pleased with fairly frequent proceedings initiated by Mr. Norton there is no evidence to indicate that this was a cause for his dismissal. Rather their action seems more to have resulted from a sense of frustration in their dealings with Mr. Norton leading to animosity and antagonism between them. Mr. Norton is disputatious, over zealous and somewhat arrogant in his assumption of superior credentials in carrying out the affairs of the Local. These qualities were openly resented by members of the executive who being elected by the members believed they should be in control of the Local's business.
Turning from the dismissal to the employer's other dealings with Mr. Norton, the arbitrator again found no anti-union animus:
As far as discrimination in violation of Article 14 is concerned, no evidence was adduced to demonstrate or even indicate that the employer's actions were motivated by Mr. Norton having filed this or any other grievance or by his activities as a member of PCWC.
- But the arbitrator's response to the suggestion that the employer improperly interfered with Norton's choice of representative is unclear on the face of the award:
There was an exchange of correspondence between the employer, the PCWC and the Retail, Wholesale and Department Store Union in which the employer questioned the propriety of an employee of the RWDSU acting as Mr. Norton's representative at an arbitration between Local 111 and the PCWC. This was satisfactorily resolved between the parties. The employer did recognize at the hearing that the employee is entitled to be represented by someone of his own choice without reference to the wishes or preferences of management. As this incident was settled and there is no evidence of any other alleged violation of clause 1.01 I cannot find before me a breach of that provision, nor am I prepared to rule on whether the employer was wrong in its initiatives concerning representation of Mr. Norton.
(emphasis added)
Did the arbitrator find no breach or did he refuse to making a ruling? The answer is not obvious. Mr. Norton testified the parties agreed during the arbitration hearing that this issue would not be addressed, leaving the complainant free to bring the matter to this Board. In the absence of any evidence to the contrary and in the face of an unclear award, we accept Mr. Norton's testimony.
The Board's policy on deferral to arbitration was canvassed in Valdi Inc., [1980] OLRB Rep. Aug. 1254:
It may be that the Board's approach has been somewhat less refined but the American treatment of deferral issues is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited (1954), 54 CLLC ¶17,083; John Inglis Co. Ltd. (1953), 53 CLLC ¶17,049; National Showcase Co. Ltd. (1961), 61 CLLC ¶16,185; Heist Industrial Services Ltd. (1963), 63 CLLC ¶16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC ¶16,198 and Collingwood Shipyards, [1967] OLRB Rep. July 376 all approach the deferral doctrine as one that will encourage the practice and procedure of collective bargaining. These cases are also aimed at discouraging dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedures for dispute settlement which they have created. See Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49. But it is also apparent that in those cases the Board acted on the premise that the resolution of the contractual issues was congruent with the resolution of the statutory unfair labour practice issues. See Imperial Tobacco Products (Ont.) Ltd. et al., [1974] OLRB Rep. July 418 at para. 26. This congruence between the contractual dispute and the overlying unfair labour practice complaint is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties. See Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427 at para. 4. However, where key provisions of The Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction. The former situation is reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb. 264 and the latter can be seen in New Gregory House, [1977] OLRB Rep. Sept. 584. Other circumstances in which the Board has been unwilling to defer to grievance arbitration involve cases where arbitration may have been unavailable to the complainant or where relief in that forum could have been inadequate. See Wallace Barnes Company Ltd., (1961), 61 CLLC ¶16,198 and the general discussion in Imperial Tobacco Products (Ontario) Limited, supra. Moreover, where the Board defers to the arbitration process it will nevertheless retain jurisdiction as the NLRB in order to insure (a) that the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and (c) that the outcome of arbitration is neither repugnant to the purposes of the Act nor remedially inadequate. See Imperial Tobacco Products (Ontario) Limited, supra, for a full discussion of these subsidiary principles. We are also of the view similar to positions taken in Banyard and Stephenson, supra, that the Board will not defer or will exercise its retained jurisdiction where the grievance or board of arbitration fails to deal directly and explicitly with the unfair labour practice issues.
In light of these principles, what in the instant case caused the Board to refuse to defer to grievance arbitration? The complaint centres on the grievor 's union activity and a dismissal but these allegations will not usually, in themselves, be sufficient justification for Board intervention into a collective bargaining relationship or, at least, these matters will not usually constitute a prima facie case for labour board intervention. Most collective agreements provide for the appointment of union stewards and also provide for their activity within the context of the collective agreement. Disputes over the extent and exercise of these contractual rights are not unusual and will not normally rise to the level of a policy concern transcending the particular collective bargaining relationship. (See Douglas Aircraft Co. of Canada Ltd. v. McConnell et al. (1979), 1979 CanLII 51 (SCC), 99 D.L.R. (3d) 385; and Firestone Steel Products of Canada Ltd., (1975), 1975 CanLII 2068 (ON LA), 8 L.A.C. (2d) 164 (Brandt).) Moreover, the general requirement found in most collective agreements that discipline and discharge be effected only for just and sufficient cause will normally provide an adequate remedy if the allegation is made out on the evidence. See Firestone Steel Products of Canada, supra; and Re Stancor Central (1970), 1970 CanLII 1677 (ON LA), 22 L.A.C. 184 (Weiler). Indeed, many collective agreements contain a "no discrimination" provision wherein the employer explicitly promises that there will be no discrimination on the basis of union membership. For example, a disciplinary dispute over union activity within the context of a collective bargaining relationship that has existed for twenty or thirty years would seem to be amendable to resolution by the parties themselves by way of their own dispute resolution procedures. Deferral in such circumstances is more consistent with the practice and procedure of collective bargaining.
In the instant case, however, we are confronted with a dispute over union activity involving a probationary employee and this dispute arises under a first collective agreement. These features of the case caused the Board to exercise its unfair labour practice jurisdiction. The fact that the complaint arises in a first agreement context raised the question as to whether a remedy limited to reinstatement (if the allegations were proved) would be sufficient. The OLRB has an expansive remedial jurisdiction and most recently has developed a fairly sophisticated array of remedies including the posting of notices for the benefit of bargaining unit employees who may have been collaterally affected by an unfair labour practice directed at a fellow employee. See Radio Shack, [1979] OLRB Rep. Dec. 1220; Kodiak Crane Coip., Board File 0549-80-U, July 18, 1980, as yet unreported; Mount Forest Caskets Ltd., Board File No. 2117-79-U, June 3, 1980, as yet unreported; G. W Martin Lumber Ltd., Board File No. 2342-79-U, May 29, 1980, as yet unreported; and A B C Day Nursery & Kindergarten Ltd., [19801 OLRB Rep. Apr. 391. But more importantly, the rights of access of probationary employees to grievance arbitration is the subject of considerable debate in labour relations law and this particular employer was not prepared to agree that no objection in this respect would be raised if the complaint was taken to arbitration. A brief review of the provisions of the instant collective agreement in light of recent case law on the access of probationary employees to arbitration underlines the basis to our concern about the efficacy of grievance arbitration in relation to this complaint.
(emphasis added)
Turning to the alleged discrimination against Mr. Norton, we believe deferral to arbitration is the appropriate course. As the collective agreement contains both a "just cause and a "no discrimination" clause, the contractual protection afforded to the complainant is as broad as that available under section 66 of the Labour Relations Act. The case has already proceeded to arbitration and no objection has been taken to the fairness of that hearing. In these circumstances, another round of adjudication would merely serve to prolong the dispute and to waste resources, both public and private. For these reasons, we defer to the arbitrator's finding that Mr. Norton was not the victim of discrimination motivated by his union activities. In light of this conclusion, the Board's broad remedial mandate cannot be a ground for assuming jurisdiction.
The complainant also contended that Robert Whissell's objection to Frank Reilley constituted management interference in the administration of a trade union and thereby violated section 64. The arbitrator did not rule upon the employer's reaction to Norton's choice of representative. Should the Board now decide this issue or should it be remitted to another arbitral proceeding? We have decided to adjudicate this matter for two reasons. First, there is some doubt as to whether the collective agreement offers the same safeguards as section 64 of the Act. Article 1.01 of the contract does recognize the union as sole bargaining agent. But this provision might be viewed as a mere declaration of rights that does not prohibit management action. Even if a contractual restraint is imposed, the breadth of the prohibition may not be as comprehensive as the protection afforded by the Act. In contrast to section 64, the agreement makes no reference to employer interference in the administration of a trade union. Secondly, other disagreements between Norton and his employer have already resulted in protracted arbitration hearings. A final disposition of the only outstanding issue is in the interest of all concerned.
The complainant contends that Robert Whissell violated section 64 of the Act by interfering with the right of an employee to choose a representative. However, the Labour Relations Act confers no such right on an individual. The legislation vests bargaining rights in a trade union and obliges an employer to deal with the union rather than with individual employees. An employer is required by statute to deal with a spokesperson chosen by a bargaining agent — to bargain in good faith and to address grievances. But management need not acknowledge employees or their representatives; indeed, direct dealings with the work force infringe upon a union's exclusive bargaining authority.
Employer interference in a union's choice of advocate is prohibited by section 64. But in our view Mr. Whissell did not violate this proscription. The employer was not obliged to deal with Mr. Reilley simply because Mr. Norton enlisted his services. Any such obligation could not arise until Whissell had reasonable grounds to believe that the union had authorized Reilley to act on its behalf. As Reilley worked for another union, his authority to act for the Professional and Clerical Workers of Canada was not obvious. There can be no objection to Mr. Whissell making inquiries; although the wisest course might have been to write to the union, instead of going over Reilley' s head to his international president. However, once Reilley's authority was established, Mr. Whissell raised no further objection.
The complaint is dismissed.